J-S41025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LARRY T. ZGURO

                            Appellant                 No. 106 MDA 2017


                Appeal from the PCRA Order December 1, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002285-2006


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 25, 2017

        Larry T. Zguro appeals from the order, entered in the Court of

Common Pleas of Dauphin County, denying his petition for post conviction

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”). 1 Zguro’s

PCRA counsel was granted permission to withdraw after filing a no-merit

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

review, we affirm.

        Our Court has previously set forth the relevant factual and procedural

background as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           In 2006, Zguro entered a negotiated guilty plea to three
     counts of theft by unlawful taking, arising from allegations that
     he had posed as a home buyer to steal jewelry from homes on
     the market. The trial court sentenced Zguro to a term of
     imprisonment of 4 to 23 months, to be followed by three years
     of probation. Zguro was immediately paroled and transferred
     pursuant to a Massachusetts detainer.

           After Zguro was paroled in Massachusetts, he failed to
     report to his Pennsylvania probation officer. On April 27, 2011,
     his probation officer learned that Zguro was serving a prison
     sentence in Nevada on charges of receiving stolen property.
     Zguro was eventually extradited to Pennsylvania, and on August
     13, 2012, the trial court revoked his probation, closed his jail
     sentence and reinstated his sentence of probation.           His
     supervision was then transferred to Nevada, where Zguro
     resided.

            On March 27, 2013, Zguro’s probation officer learned that
     Zguro was once again in violation of his sentence by failing to
     report. Shortly thereafter, his probation officer issued a detainer
     under the Interstate Compact.       Nevada authorities arrested
     Zguro on April 7, 2013, and held him pursuant to the detainer.
     Upon talking to Zguro by telephone the next day, the officer
     learned that Zguro was suffering from prostate cancer. The
     officer attempted to lift the detainer in order to avoid the
     expense of extradition of a seriously ill offender, but such an
     action was deemed unavailable under the Interstate Compact.

            The officer contacted Zguro again and informed him that
     the detainer was still active. Zguro promised that he would pay
     the balance of his restitution and costs in order to have his case
     closed. Later that day, Zguro left a message for his probation
     officer, claiming that he just missed the overnight mail, and that
     the money would be sent the next day. It never arrived.

           Zguro again contacted his probation officer, claiming that
     he had been transferred to California to treat his medical
     condition. The probation officer requested documentation of
     Zguro’s hospitalization, but never received any.

           In February 2014, Zguro was arrested on the detainer
     while gambling at a casino in Nevada. Zguro claimed that he
     could pay off his restitution and costs from his gambling

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        winnings, but no payment was ever made. At the same time,
        Zguro accrued new charges of swindling a 75-year-old women
        out of nearly $20,000 in 2012. At the time of his revocation
        hearing, Zguro had outstanding warrants in Massachusetts and
        Colorado.

              After reviewing Zguro’s history, and receiving evidence of
        his medical condition, the trial court imposed a sentence of
        imprisonment of 18 to 36 months and a consecutive 3 year
        probation sentence. However, the trial court gave Zguro 29
        days to pay his restitution to his Dauphin County victims, in
        which case he would be released from prison.

               Zguro’s counsel filed post-sentence motions, which the
        trial court denied, but no timely direct appeal was filed. On
        August 8, 2014, Zguro’s direct appellate rights were reinstated
        via a Post Conviction Relief Act petition asserting that counsel
        had been ineffective per se for failing to file an appeal. This
        appeal follows.


Commonwealth v. Zguro, 1448 MDA 2014, at *1-3 (Pa. Super. May 27,

2015). We affirmed Zguro’s judgment of sentence on direct appeal.2 Id.

        Zguro filed petitions for post conviction collateral relief on May 20,

2016, and July 14, 2016.          On August 3, 2016, Damian J. DeStefano was

appointed as PCRA counsel. DeStefano filed a petition for leave to withdraw

as counsel and filed a no-merit Turner3 letter on October 25, 2016. Zguro

filed a response to DeStefano’s no-merit letter on November 7, 2016. The

PCRA court denied Zguro’s PCRA petition without a hearing on December 1,


____________________________________________


2
  Subsequently, Zguro filed several miscellaneous motions that do not affect
the disposition of this appeal.
3
    Turner, supra; Finley, supra.



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2016, and Zguro filed a timely notice of appeal on December 20, 2016.

Zguro filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal on January 30, 2017. The trial court issued a statement in lieu of a

memorandum opinion on January 31, 2017.

      Zguro’s brief raised twenty-three issues for our review. Among them,

we found six decipherable issues to review:


      1. Zguro’s trial counsel, Petra Gross, was ineffective for not
         investigating the case in Nevada. If she had investigated, she
         would have found that the trial there was pending, and that
         Zguro was not out on bail. The mere fact that it was
         mentioned that Zguro had charges in Nevada prejudiced his
         revocation hearing.

      2. Trial counsel, Petra Gross, was ineffective in not objecting to
         the use of the case in Colorado, which Zguro claims is not his
         case, but his son’s.

      3. PCRA counsel Damian J. DeStefano was ineffective for filing a
         no-merit letter despite not being able to review all documents
         in the record after DeStefano’s motion for copies of any and
         all documents in record was denied.

      4. Zguro’s sentence was excessive, because Zguro could have
         been innocent on the Nevada charge, and Zguro was paying
         restitution until he was sent to the hospital.

      5. The PCRA court abused its discretion in not holding an
         evidentiary hearing despite Zguro’s ineffective counsel claim
         containing arguable merit.

      6. Zguro claims that he was wrongfully convicted and is serving
         an illegal sentence.


Brief of Appellant, at 1-8 (rewritten for readability).



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      Zguro’s first and second claims allege that his attorney was ineffective

for not objecting to the use of the Nevada case or the Colorado case at the

revocation hearing and for not investigating those cases.                “It is well-

established    that    counsel   is   presumed   effective,   and   to   rebut   that

presumption,     the    PCRA     petitioner   must   demonstrate    that   counsel’s

performance [was] deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). To prevail on

an ineffectiveness claim, the petitioner has the burden to prove that: “(1)

the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 45

A.3d 1096, 1106 (Pa 2012). The failure to satisfy any one of the prongs will

cause the entire claim to fail. Id.

      In this case, Zguro’s ineffectiveness claims lack arguable merit.

Zguro’s claims rely on the theory that the court must have used the Nevada

and Colorado case in order to revoke his probation and sentence him to

incarceration.    However, evidence produced at the revocation hearing

showed that Zguro violated the terms of his probation by absconding from

supervision and for failing to make restitution to his victims.                  N.T.

Revocation Hearing, 5/23/13, at 2. This evidence allowed the court to find

that Zguro had violated the terms of his probation, notwithstanding the

Nevada or Colorado case. Id. at 13. Therefore, the claims that counsel was

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ineffective for failing investigate the Nevada case and object to it being

mentioned at the hearing are meritless. Sneed, supra.

      Zguro next claims that his PCRA counsel was ineffective by submitting

a Turner/Finley letter without first learning the facts of his case and

seeking to withdraw.    Withdrawal by PCRA counsel requires proof of the

following:

            1) A "no-merit" letter by [PCRA] counsel detailing the
      nature and extent of his review;

            2) The "no merit" letter by [PCRA] counsel listing each
      issue the petitioner wished to have reviewed;

             3) The [PCRA] counsel's explanation, in the "no-merit"
      letter, of why the petitioner's issues were meritless;

            4) The [PCRA] court conducting its own independent
      review of the record; and

           5) The [PCRA] court agreeing with counsel that the petition
      was meritless

Finley, 550 A.2d at 215.

      In this case, Zguro’s PCRA counsel has fulfilled the requirements for a

no-merit letter.   Counsel’s letter explains the extent of her review, and

explained why she believed Zguro’s claims to be meritless. The PCRA court

then examined Zguro’s arguments and agreed that they were meritless.

Zguro argues that the PCRA court’s allowance for withdrawal was improper

as counsel could not properly explain why Zguro’s claims were meritless

because counsel’s motion for copies of any and all documents in the record

was denied. Brief of Appellant, at 4. However, counsel’s letter states that


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she, in fact, reviewed the court records and concluded that Zguro’s claims

were meritless.    Therefore, Zguro’s argument is without merit.             Sneed,

supra.

       Next, Zguro argues that his sentence was excessive. This same issue

was addressed by this Court in Zguro’s previous appeal. See Zguro, 1448

MDA 2014.      Thus, we find this claim was previously litigated.           See 42

Pa.C.S.A. § 9543(a)(3); § 9544(a)(2).

       Zguro’s next claim is that it was reversible error for the court not to

hold   an   evidentiary   hearing    regarding   his   claims   of   ineffectiveness.

However, Zguro has failed to raise this issue in his Rule 1925(b) statement.

“Any issues not raised in a 1925(b) statement will be deemed waived.”

Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa. Super. 2001),

quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (quotation

marks omitted). Therefore, we find that Zguro has waived this issue.

       Finally, Zguro claims his sentence is illegal. Although, Zguro has not

developed this argument in his 1925(b) statement, a “challenge to the

legality of the sentence may be raised as a matter of right, is non-waivable,

and may be entertained so long as the reviewing court has jurisdiction.”

Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007).

“[T]he term 'illegal sentence' is a term of art that our Courts apply narrowly,

to a relatively small class of cases.” Commonwealth v. Berry, 877 A.2d

479, 483 (Pa. Super. 2005).         Our Court has held that this class of cases

includes: “(1) claims that the sentence fell ‘outside of the legal parameters

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prescribed by the applicable statute’; (2) claims involving merger/double

jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey,

530 U.S. 466 (2000).” Robinson, 931 A.2d at 21.

        This case does not fall under any of the class of cases to be considered

an illegal sentence.        Zguro’s sentence fell within statutory limits after

probation was revoked.4 This is also not a claim involving merger or double

jeopardy, as the trial court properly held that all three counts of unlawful

taking were the result of three different criminal acts.     Robinson, 931 at

24-25.    Finally, Apprendi is not relevant here, as the lower court did not

find “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum.” Apprendi, 530 U.S. at 490. Therefore, this claim is

meritless.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




____________________________________________


4
    42 Pa.C.S. § 9701 et seq.



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