J-S45017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD OXNER,                             :
                                               :
                       Appellant               :   No. 1534 EDA 2018

                    Appeal from the PCRA Order May 15, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007212-2013,
              CP-51-CR-0008970-2015, CP-51-CR-0009943-2015,
              CP-51-CR-0014276-2011, MC-51-CR-0029660-2015


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 16, 2019

        Richard Oxner (Appellant) appeals from the order denying his timely

petition seeking relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized:

              Simply put, on February 4, 2016, [Appellant] was found to
        be in violation of probation (“VOP”) on two prior Bills of
        Information. On the same date, [Appellant] entered into “non-
        negotiated” pleas of guilty on three separate Bills of Information.
        At CP-51-CR-0008970-2015, [Appellant] entered into a non-
        negotiated plea on the charge of PWID; at CP-51-CR-0009943-
        2015, [Appellant] entered into a non-negotiated guilty plea on the
        charge of PWID; and at MC-51-CR-0029660-2015, [Appellant]
        entered into a non-negotiated guilty plea on the charge of simple
        possession. The court revoked his bail and scheduled a sentencing
        hearing on all five Bills of Information on April 15, 2016.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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            At his sentencing hearing held on April 15, 2016, [Appellant]
     was first sentenced on his three non-negotiated pleas to
     concurrent periods of confinement in a state correctional
     institution of 4 to 8 years on the first PWID charge, 2 to 8 years
     on the second PWID charge, and 1 to 2 years on the simple
     possession charge, for an aggregate sentence of 4 to 8 years. He
     was then sentenced on his two “VOP” charges to concurrent
     periods of confinement of 1 to 2 years on the charges of
     possession of an instrument of crime (PIC) and conspiracy and a
     consecutive period of confinement of 1 to 3 years on the charge
     of PWID, for an aggregate period of confinement of 2 to 5 years.
     The court also ordered that his sentences on the pleas were to be
     served consecutively to his VOP sentences for a total aggregate
     sentence of 6 to 13 years confinement.

          [Appellant] filed neither a motion for reconsideration of his
     sentence nor a direct appeal.

PCRA Court Opinion, 11/19/18, at 1-2 (footnote omitted).

     Appellant filed the underlying PCRA petition pro se on October 14, 2016.

Appellant subsequently obtained representation, and on August 10, 2017,

Appellant’s counsel filed an amended PCRA petition. On March 13, 2018, the

PCRA court issued notice of intent to dismiss the petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907. On May 15, 2018

the PCRA court entered the order denying the petition. Appellant filed this

timely appeal on May 25, 2018. Both the PCRA court and Appellant have

complied with Pennsylvania Rule of Appellate Procedure 1925.

     Appellant presents two questions on appeal:

     I.    Whether the court erred in denying the Appellant’s PCRA
           petition without an evidentiary hearing on the issues raised
           in the amended PCRA petition regarding trial counsel’s
           ineffectiveness.

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

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Appellant’s Brief at 8.

      In his first issue, Appellant claims that the PCRA court erred by failing

to hold an evidentiary hearing. We recently repeated our standard of review:

      Our review of a PCRA court’s decision is limited to examining
      whether the PCRA court’s findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. We view the findings of the PCRA court and the evidence
      of record in a light most favorable to the prevailing party. With
      respect to the PCRA court’s decision to deny a request for an
      evidentiary hearing, or to hold a limited evidentiary hearing, such
      a decision is within the discretion of the PCRA court and will not
      be overturned absent an abuse of discretion.

Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa. Super. 2019) (citation

omitted).

      Instantly, Appellant concedes that his right to an evidentiary hearing is

not absolute. Appellant’s Brief at 19 (citation omitted). In the remainder of

his   argument,   however,   Appellant   simply   recites   general   case   law,

emphasizing that a hearing is warranted “on any issue that the PCRA court is

not certain lacks merit.” Id. at 19-20 (citations omitted). Critically, Appellant

fails to relate the case law he cites to the record — including his petitions —

and the PCRA court’s decision not to hold a hearing. See id. We therefore

find that this issue is undeveloped and waived.       See Commonwealth v.

Spotz, 18 A.3d 244, 323 (Pa. 2011) (where appellant included no argument

as to the court’s alleged error, claim is “completely undeveloped and

unreviewable, and, accordingly, it is waived.”). Our Supreme Court has long

held that it is not this Court’s obligation to formulate arguments on behalf of


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an appellant. Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008);

see also Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(stating “where an appellate brief . . . fails to develop the issue in [a]

meaningful    fashion   capable      of     review,   that   claim   is   waived”);

Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a well-

settled principle of appellate jurisprudence that undeveloped claims are

waived and unreviewable on appeal.”).

      In his second issue, Appellant argues that the PCRA court erred by failing

to find trial counsel ineffective.        Citing his amended petition, Appellant

contends that after sentencing, he asked counsel to file a motion for

reconsideration, and appeal if the motion was denied. Appellant’s Brief at 21.

Appellant states that he was unable to reach his counsel and “spoke with the

secretary with his request.” Id. Appellant claims that counsel’s failure to file

a motion for reconsideration constituted ineffective assistance because “a

reasonable judge would have granted a reconsideration motion” where the

sentencing court “failed to give any consideration to any of the relevant

sentencing factors when it imposed the lengthy sentence.” Id. at 23. For

these reasons, Appellant concludes that he “suffered actual prejudice as a

result of counsel’s failure to file a reconsideration motion.” Id.

      We again note our standard of review:

             As a general proposition, an appellate court reviews
             the PCRA court’s findings to see if they are supported
             by the record and free from legal error. The court’s
             scope of review is limited to the findings of the PCRA

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            court ... viewed in the light most favorable to the
            prevailing party.
                                     ***
        To prevail on a claim that counsel was constitutionally
        ineffective, [Appellant] must overcome the presumption of
        competence by showing that: (1) his underlying claim is of
        arguable merit; (2) the particular course of conduct pursued
        by counsel did not have some reasonable basis designed to
        effectuate his interests; and (3) but for counsel’s
        ineffectiveness, there is a reasonable probability that the
        outcome of the challenged proceedings would have been
        different. A failure to satisfy any prong of [this] test[, also
        referred to as the Pierce test,] ... will require rejection of the
        claim.

      Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super.
      2008) (citation omitted). “In accord with these well-established
      criteria for review, [an appellant] must set forth and individually
      discuss substantively each prong of the [Pierce ] test.”

Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 2009).

      Mindful of the foregoing, our review of the record reveals no error by

the PCRA court.    We note that the Honorable Charles J. Cunningham III

presided over Appellant’s sentencing on April 15, 2016, as well as the

subsequent PCRA proceedings. Sitting as the PCRA court, Judge Cunningham

contradicted Appellant’s claim that counsel was ineffective for failing to file a

motion for reconsideration, stating, “[a]t the conclusion of [Appellant’s]

sentencing hearing, Counsel did in fact make an oral motion seeking

reconsideration of sentence.” PCRA Court Opinion, 11/19/18, at 4. Appellant

has acknowledged this statement, and responded that current counsel “has

been unable to find any oral motion seeking reconsideration of the sentence

in the transcripts.” Appellant’s Brief at 21 n.2.


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      Our review reveals that Judge Cunningham comprehensively explained

Appellant’s sentence on the record.          See, N.T., 4/15/16, at 23-28.

Immediately thereafter, the following exchange occurred between Judge

Cunningham and Appellant’s counsel:

      THE COURT:        Does anybody have any questions with regard
      to any of this?

      COUNSEL:         Judge, I have one question, please, and I just –
      I’m asking the Court to consider that two-and-a-half to five that
      you have currently running consecutive . . . I’m sorry, two to five
      that you have running consecutive to the four to eight. I’m asking
      the Court to consider running those current, please. . . .

      THE COURT:         No. No. Absolutely not. The VOPs – you don’t
      get a free ride because you get convicted of a subsequent offense.
      We don’t just forget that you were on probation and wipe it away.

N.T., 4/15/16, at 28-29.      Appellant’s counsel continued to advocate —

unsuccessfully — for a lesser sentence, with the court concluding, “So the total

sentence is six to 13, as I’ve described.”    Id. at 30.    It is reasonable to

conclude from this record, as the PCRA court did, that counsel sought

reconsideration.

      However, even in the absence of counsel’s oral advocacy, the record

does not support Appellant’s claim of ineffectiveness. The PCRA court stated,

“had [Appellant] filed a formal motion for reconsideration, the court would

have denied it, as it did his oral motion.” PCRA Court Opinion, 11/19/18, at

9. The PCRA court accurately recognized that Appellant “must establish actual

prejudice” and “must establish that there was a ‘reasonable probability’ that




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such a motion would have resulted in a reduction of his sentence.” Id. at 6-

7.

     The court opined:

            In imposing sentence, the court was not unmindful of
     counsel’s impassioned plea, for mitigating [Appellant’s] sentence,
     in explaining the circumstances leading to [Appellant’s] addiction.
     The court also took into account [Appellant’s] taking responsibility
     for his actions, stating for the record: “Because it was a plea, at
     time of sentencing I always look to the bottom of the sentencing
     guidelines. Because I figure, if someone’s pleading guilty and
     saying -- admitting what they’re doing, they’ve done, and they
     say they’re sorry, and that’s a good indication they’re not going
     to come back in front of me.” (N.T., 4/15/16, pg. 24)

            As noted above, on April 15, 2016, the court first imposed
     sentence on [Appellant’s] three non-negotiated plea agreements.
     Prior to the imposition of sentence, it was agreed by counsel that
     [Appellant’s] prior record score was 5 and offense gravity score
     for the most serious PWID charge was II. It was also agreed that
     the guidelines recommendation was 72 to 90 months, +- 12
     months. (N.T., 4/15/16, pg. 7) After reviewing [Appellant’s] pre-
     sentence report, listening to argument of counsel, the testimony
     of [Appellant’s] character witnesses and [Appellant’s] attempts at
     rehabilitation, the court, on the PWID charges, imposed
     concurrent sentences of periods of confinement of 4 to 8 years
     and 2 to 8 years, and on the remaining simple possession charge,
     1 to 2 years. [Appellant’s] aggregate sentence of 4 to 8 years, on
     these charges, clearly falls below even the mitigated range of the
     guidelines. (N.T., 4/15/16, pgs. 7, 24, 25)

           With regard to [Appellant’s] “VOP”s, the Court felt
     compelled, in light of his prior violations, to impose additional
     sentences of confinement. In addressing [Appellant’s] “VOP”s,
     the court noted: “On these violations, this is not the first time
     we've been here. I mean, we have been here before on violations,
     and I have found [Appellant] in violation, and each time I just
     impose the same sentence... I just said the same sentence could
     stand... And I did the same thing on both of those cases... So you
     reach a certain point where I can’t say same sentence to stand or
     impose no other sentence because, otherwise, what does
     probation mean?” The court imposed an aggregate sentence of 2

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      to 5 years, on the “VOP” charges, to be served consecutively to
      those sentences imposed as a result of his non-negotiated pleas.
      (NT., 4/15/16, pgs. 26, 27)

              Furthermore, [Appellant’s] resulting total aggregate
      sentence of 6 to 13 years of confinement clearly falls within the
      guideline recommendation of 72 to 90 months, ± 12 months on
      the most serious charge of PWID. After imposing sentence, the
      court added that “if I hadn’t taken into consideration the
      mitigation that was presented to me today by his family and in
      the presentence report, it would have been very easy to give you
      double digits to something... Counsel immediately requested that
      the Court reconsider [Appellant’s] sentence, requesting that the
      VOP sentences run concurrently to the sentences imposed on the
      non-negotiated pleas. In denying counsel’s request the court
      stated: “No. No. Absolutely not. The VOPs -- you don’t get a
      free ride because you get convicted of a subsequent offense. We
      don’t just forget that you were on probation and wipe it away.”
      (N.T., 4/15/16, pgs. 28, 29) Nevertheless, [Appellant’s] sentence
      was reasonable under the circumstances and had [Appellant] filed
      a formal motion for reconsideration, the court would have denied
      it, as it did his oral motion.

PCRA Court Opinion, 11/19/18, at 7-8.

      Consistent with the foregoing, we find no error by the PCRA court in

rejecting Appellant’s claim of counsel’s ineffectiveness.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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