J-S19015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

MICHAEL BRODIE

                          Appellant                 No. 1691 EDA 2014


               Appeal from the PCRA Order entered May 28, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0209591-2005


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 22, 2015

      Appellant, Michael Brodie, appeals from the May 28, 2014 order of the

Court of Common Pleas of Philadelphia County denying relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.      Upon review, we

affirm.

      The PCRA court summarized the relevant facts and procedural history

as follows:

      On October 13, 2005, [Appellant] pled guilty to possession with
      intent to deliver a controlled substance (PWID) and knowing and
      intentional possession of a controlled substance (K&I). He was
      sentenced to one year in the County Intermediate Punishment
      Program, including six months of house arrest and intensive
      outpatient drug treatment, followed by one year reporting
      probation. . . .

      [Appellant] was arrested two more times over the next three
      months. On December 6, 2005, less than two months later,
      [Appellant] was arrested and charged with PWID and criminal
      conspiracy. He pled guilty to those charges on May 21, 2007,
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     and was sentenced to three years of probation. He was arrested
     for a third time on February 14, 2006. He was charged with yet
     another PWID. Those charges were subsequently dropped.

     [Appellant]’s first violation of probation hearing occurred on June
     29, 2007. This [c]ourt found [Appellant] to be in direct violation
     based on his May 21, 2007 guilty plea.            This [c]ourt also
     determined that he was in technical violation of his probation for
     absconding from supervision, cutting off his electronic
     monitoring device during house arrest, testing positive for drug
     use, getting kicked out of drug treatment, failing to pay costs
     and fines, and failing to perform twenty hours of community
     service. In consideration of these circumstances, this [c]ourt
     revoked his IP probation and resentenced him to 11½ to 23
     months county incarceration, followed by three years probation.
     Additionally, this [c]ourt ordered [Appellant] to complete 90
     days in the Options drug program, receive his GED, and attend
     vocational training.     This [c]ourt warned [Appellant] not to
     violate his probation again. If he did, the [c]ourt would impose
     a state sentence.

     [Appellant] was released from county jail seven months later, on
     February 14, 2008. Two months after release, [Appellant] was
     arrested for a fourth time and charged with several weapons
     violations. He was convicted of violating the Uniform Firearms
     Act (VUFA), 18 Pa.C.S. § 6105[,] [c]arrying a [f]irearm as a
     [p]erson [p]rohibited from [u]sing or [p]ossessing [f]irearms.
     The Honorable Susan Schulman sentenced him to 3½ to 7 years
     of state incarceration followed by three years probation.

     [Appellant]’s second violation of probation hearing occurred on
     January 28, 2009 before this [c]ourt. In addition to his repeated
     offenses, [Appellant]’s probation officer stated that he only
     reported to her once and never attended any vocational training.
     The [c]ourt reminded [Appellant] of its prior warning at his first
     violation of parole hearing. After finding [Appellant] in direct
     and technical violation of his probation, the [c]ourt sentenced
     him to 5 to 10 years incarceration, to run consecutive to any
     other sentence, with credit for time served.

     [Appellant] appealed on February 27, 2009, challenging the
     discretionary aspects of his sentence with Victor Rausch, Esq., as
     counsel. The Pennsylvania Superior Court affirmed on October
     22, 2010. Allocatur was denied on February 24, 2011.

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      On February 2, 2012, [Appellant] filed a pro se petition under
      the PCRA. Subsequently, on June 6, 2012, Peter A. Levin, Esq.,
      was appointed as PCRA [c]ounsel. He filed an amended PCRA
      petition on [Appellant]’s behalf on December 2, 2013. The
      Commonwealth filed a [m]otion to [d]ismiss on March 10, 2014.
      On May 28, 2014, this [c]ourt dismissed the PCRA petition as
      meritless. On May 30, 2014, [Appellant] filed a [n]otice of
      [a]ppeal. In [Appellant]’s § 1925(b) response filed June 25,
      2014, he alleges that he received ineffective assistance of
      counsel from appellate counsel because he allegedly failed to
      argue on direct appeal that this [c]ourt “pre-fixed” his violation
      of probation sentence.

Trial Court Opinion, 8/14/14 at 1-3 (citation omitted).

      On appeal, Appellant raises the following issues for our review:

      I.    Whether the [PCRA court] was in error denying the
      Appellant’s PCRA petition without an evidentiary hearing on the
      issues raised in the amended PCRA petition regarding [direct
      appeal] counsel’s ineffectiveness.

      II.    Whether the [PCRA court] was in error in not granting
      relief on the PCRA petition alleging counsel was ineffective.

Appellant’s Brief at 8.

      For ease of discussion, we will address the ineffective assistance of

counsel claim first. Appellant’s ineffective assistance of counsel claim may

be summarized with one sentence.       Direct appeal counsel was ineffective

because he “did not present the Pennsylvania Superior Court with the issue

of the trial court pre-fixing the Appellant’s sentence.”   Appellant’s Brief at

17. In support, Appellant quotes two sentences the trial court proffered at

the time of sentencing: “I am going to impose a sentence I promised.          I

promised him a consecutive [s]tate sentence of five to ten years and I am

going to do that right now.” N.T., 1/28/09, at 12. According to Appellant,

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these statements show that the trial court had pre-fixed his sentence in

violation of 42 Pa.C.S.A. § 9754(d).1

       Counsel raised this issue in the 1925(b) statement.           In its Rule

1925(a) opinion, the trial court addressed it as follows:

       This [c]ourt did not improperly “pre-fix” [Appellant]’s sentence in
       violation of 42 Pa.C.S. § 9754([d]). The statute states: “[t]he
       sentence to be imposed in the event of the violation of a
       condition shall not be fixed prior to a finding on the record that a
       violation has occurred.” [Appellant] claims that at his prior
       violation hearing on June 29, 2007, this [c]ourt improperly “pre-
       fixed” his sentence at 5 to 10 years state incarceration in the
       event he committed another violation of his probation. After
       numerous requests, notes of testimony from the June 29, 2007
       violation hearing cannot be located and are hopelessly
       unavailable, particularly since the assigned stenographer is no
       longer working for the [c]ourt[]. Since these notes are not
       available, appellate counsel cannot demonstrate that this
       [c]ourt, in fact, “pre-fixed” [Appellant]’s sentence.         To the
       contrary, on June 29, 2007, this [c]ourt did not pre-fix
       [Appellant]’s sentence as it is not this [c]ourt’s practice to do so.
       This [c]ourt has conducted hundreds, if not thousands, of
       violation hearings and routinely states that the defendant will
       receive a “state sentence” next time, but never states a specific
       length of state sentence[]. Since the notes of testimony are
       unavailable, there is no documentary evidence that this [c]ourt
       stated anything improper on the record.

Trial Court Opinion, 12/29/09, at 11-12.

       On direct appeal, counsel did not renew the challenge. According to

Appellant, counsel’s failure to renew the issue before the Superior Court


____________________________________________


1
  Section 9754(d) reads as follows: “The sentence to be imposed in the
event of the violation of a condition shall not be fixed prior to a finding on
the record that a violation has occurred.” 42 Pa.C.S.A. § 9754(d).



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amounted to ineffective assistance of counsel. Specifically, Appellant argues

the claim had arguable merit because fixing a sentence is prohibited by

Section 9754(d), counsel had no reasonable basis for not raising it on direct

appeal, and Appellant suffered “great prejudice” from such omission.     We

disagree.

     In reviewing the denial of PCRA relief, we examine whether the
     PCRA court’s determination “is supported by the record and free
     of legal error.” Commonwealth v. Rainey, [928 A.2d 215, 223
     (Pa. 2007)] (citations omitted). To be entitled to PCRA relief,
     appellant must establish, by a preponderance of the evidence,
     his conviction or sentence resulted from one or more of the
     enumerated errors in 42 Pa.C.S. § 9543(a)(2) . . . .

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

     Here, Appellant argues he is entitled to relief based on direct appeal

counsel’s ineffective assistance.   We review ineffective assistance claims

according to the following standard:

            To prevail on an ineffectiveness claim, appellant
            must establish:

            (1) the underlying claim has arguable merit; (2) no
            reasonable basis existed for counsel’s actions or
            failure to act; and (3) [appellant] suffered prejudice
            as a result of counsel’s error such that there is a
            reasonable probability that the result of the
            proceeding would have been different absent such
            error.

     Commonwealth v. Lesko, [15 A.3d 345, 373-74 (Pa. 2011)]
     (citing Commonwealth v. Pierce, [527 A.2d 973, 975 (Pa.
     1987)]). Failure to prove any prong of this test will defeat an
     ineffectiveness claim.  Commonwealth v. Basemore, [744
     A.2d 717, 738 n.23 (Pa. 2000)] (citation omitted).



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Id. at 804.

        The claim has no arguable merit. The trial court’s imposition of a 5 to

10 year sentence, as “promised,” does not prove anything. In fact, as also

noted    on   direct   appeal,   the   sentence   was   tailored   to   the   specific

circumstances of Appellant’s case. On direct appeal we noted that the trial

court “considered Appellant’s criminal history, listened to recommendations

from the Commonwealth and Appellant’s probation officer, as well as

counsel, and [the record] reflects that the trial court considered the

protection of the public, the facts of the crime, the character of Appellant,

and his rehabilitative needs in making its determination.” Commonwealth

v. Brodie, No. 690 EDA 2009, unpublished memorandum at 7 (Pa. Super.

filed October 22, 2010).

        Counsel had a reasonable basis for not renewing a meritless challenge.

First, there is no record the trial court made such a promise at the 2007

violation hearing. See Trial Court Opinion, 12/29/09, at 11. Second, and

more important, as noted above, the challenge has no arguable merit.

Counsel cannot be faulted for not raising a meritless claim.                     See

Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014)

(citations omitted).

        Finally, Appellant failed to allege and prove prejudice that but for

counsel’s ineffectiveness there is a reasonable probability that the outcome

would have been different.       Here, Appellant acknowledges that he cannot

allege, let alone prove, the outcome would have been different had the issue


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been raised. Appellant’s Brief at 18. As such, the claim fails. See Fears,

supra.

      Given the foregoing, the trial court did not err or abuse its discretion in

not holding a hearing on Appellant’s ineffective assistance of counsel claim.

See Commonwealth v. Thomas, 744 A.2d 713, 717 (Pa. 2000).

(“[B]ecause the issues raised by appellant . . . are meritless, the PCRA court

acted within its discretion by denying appellant a hearing.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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