J-S47003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CARL FREEMAN MOYER                   :
                                      :
                   Appellant          :   No. 75 MDA 2019

         Appeal from the PCRA Order Entered December 20, 2018
  In the Court of Common Pleas of Lycoming County Criminal Division at
                    No(s): CP-41-CR-0002061-2014

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CARL FREEMAN MOYER                   :
                                      :
                   Appellant          :   No. 76 MDA 2019

         Appeal from the PCRA Order Entered December 20, 2018
  In the Court of Common Pleas of Lycoming County Criminal Division at
                    No(s): CP-41-CR-0001050-2014

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CARL FREEMAN MOYER, JR.              :
                                      :
                   Appellant          :   No. 77 MDA 2019

         Appeal from the PCRA Order Entered December 20, 2018
  In the Court of Common Pleas of Lycoming County Criminal Division at
                    No(s): CP-41-CR-0001387-2014


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
J-S47003-19



MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 03, 2019

        Appellant, Carl Moyer, Jr., appeals pro se from the Order dismissing his

first Petition filed pursuant to the Post Collateral Review Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

        On March 10, 2015, Appellant pled guilty to three counts of DUI –

Highest Rate of Alcohol1 in connection with three separate incidents that

occurred between March 15, 2014, and August 30, 2014. After reviewing a

pre-sentence report and other documents,2 the court imposed an aggregate

sentence of 15 years of Intermediate Punishment with the first 17 months to

be served at the county work release facility. However, after sentencing, the

court overheard Appellant speaking with his significant other and with his

probation officer in the hall outside the courtroom, and realized that the

information provided by Appellant at the sentencing hearing regarding his

efforts toward sobriety may not have been accurate. The court sua sponte

immediately directed the parties to return to the courtroom, re-opened the

record, vacated the original sentence, and took additional testimony from

Appellant and his significant other.




____________________________________________

1   75 Pa.C.S. § 3802(c).

2 The parties stipulated that Appellant’s prior record score is RFEL (“repeat
felony offender”) and his offense gravity score is five. Commonwealth v.
Moyer, No. 2064 MDA 2016 (Pa. Super. filed Nov. 15, 2017) (unpublished
memorandum).

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       The court then sentenced Appellant to an aggregate sentence of six to

fifteen years’ incarceration in state prison. In its written sentencing order, the

court noted that “because it is apparent . . . that the defendant continues to

drink and has not accepted responsibility for his extremely dangerous conduct,

and has, in fact, made misrepresentations to the [c]ourt regarding his steps

at recovery[,] . . . the [c]ourt is of the opinion that a sentence of state prison

is warranted.”     Order, dated 3/10/15, at 1. Appellant did not file a post-

sentence motion or a direct appeal.

       After Appellant successfully petitioned for the reinstatement of his

appeal rights, he timely appealed to challenge the discretionary aspects of his

sentence. This Court affirmed Appellant’s Judgment of Sentence in an

unpublished Memorandum. Commonwealth v. Moyer, No. 2064 MDA 2016

(Pa. Super. filed Nov. 15, 2017).

       Appellant timely filed the instant PCRA Petition raising challenges to the

sentencing proceedings and the effectiveness of trial counsel’s stewardship.

The court appointed counsel, who filed a Turner/Finley3 no merit letter and

a Motion to Withdraw as Counsel.

       Pursuant to Pa.R.Crim.P. 907, the court notified Appellant of its intent

to dismiss his Petition without a hearing and granted counsel’s Motion to

Withdraw. See Opinion and Order, filed Oct. 16, 2018. Appellant responded

____________________________________________

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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to the Rule 907 Notice, again raising ineffective assistance of trial counsel as

well as PCRA counsel. The court dismissed his Petition.

       Appellant timely appealed. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues in his Brief:

       1. Did the trial court abuse its discretion in engaging in ex parte
       communications with the prosecution and an ex-post-fact[4]
       witness for the purpose of sentencing?

       2. Did the trial court abuse its discretion in resentencing the
       defendant without allowing defendant to withdraw his prior plea
       of guilt?

       3. Did the prosecution engage in misconduct in presenting ex
       parte and ex-post-facto evidence to the trial court in order to
       ambush and violate due process?

       4. Was trial counsel ineffective in failing to move for immediate
       withdrawal of the defendant’s guilty plea based upon the above
       errors?

       5. Did the cumulative effect of these violations violate the
       defendant’s fundamental fairness and due process rights?

Appellant’s Br. at 1.5


____________________________________________

4Appellant clarified in his Response to the court’s Rule 907 Notice that he was
using the term “ex post facto” to mean “after the fact” of the sentencing,
essentially asserting that the court should not have taken further testimonial
evidence after imposing its original sentence. See Response to Rule 907, filed
11/2/18, at 2.

5 Although raised in his Response to the court’s Rule 907 Notice, Appellant
has not raised his claim of PCRA counsel’s ineffectiveness in his Brief. The
claim is, therefore, waived.

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Standard and Scope of Review

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

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

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      This Court has long recognized that there is no absolute right to an

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super.

2006). "It is within the PCRA court's discretion to decline to hold a hearing if

the petitioner's claim is patently frivolous and has no support either in the

record or [in] other evidence." Commonwealth v. Wah, 42 A.3d 335, 338

(Pa. Super. 2012) (citations omitted). When the PCRA court denies a petition

without an evidentiary hearing, we "examine each issue raised in the PCRA

petition in light of the record certified before it in order to determine if the

PCRA court erred in its determination that there were no genuine issues of

material fact in controversy and in denying relief without conducting an

evidentiary hearing." Commonwealth v. Khalifah, 852 A.2d 1238, 1240

(Pa. Super. 2004) (citation omitted).




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Issues 1-3 Waived

      To be eligible for relief under the PCRA, a petitioner must demonstrate

that the issue has not been previously litigated or waived.         42 Pa.C.S. §

9543(a)(3).   “An allegation is deemed waived ‘if the petitioner could have

raised it but failed to do so before trial, at trial, on appeal or in a prior state

postconviction proceeding.”     Commonwealth v. Brown, 872 A.2d 1139,

1144 (Pa. 2005) (quoting 42 Pa.C.S. § 9544(b)). “We further note that,

pursuant to Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the

relaxed waiver rule is no longer applicable to PCRA appeals and therefore any

claims that have been waived by Appellant are beyond the power of this Court

to review under the terms of the PCRA.” Brown, 872 A.2d at 1144.

      In his first and third issues, Appellant challenges his resentencing

proceeding, asserting that the court abused its discretion in considering

inadmissible evidence. He also raises a discretionary aspect of sentencing

claim, contending that the court “ignored each and every mitigating factor it

considered in the original sentencing proceeding” to impose a term of

incarceration to be served in state prison. Appellant’s Brief at 14. Finally,

Appellant asserts the prosecutor improperly presented “ex parte and ex-post-

facto evidence to the court” to “ambush and violate due process.” Id. at 12.

In support, he posits that the prosecutor went to the trial court after

Appellant’s significant other “began to rant concerning a single indiscretion

concerning [Appellant’s] sobriety” to “back-door[] this information to the trial


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J-S47003-19


judge outside the proceedings and inflamed the judge to re-open the case.”

Id. at 13.

       As noted above, this Court previously addressed Appellant’s challenge

to the discretionary aspects of his sentence on direct appeal and, therefore, it

is not now cognizable.            42 Pa.C.S. §§ 9543(a)(3) and 9544(a)(2);

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).                In addition,

Appellant should have raised his challenges to the resentencing proceeding

itself on direct appeal. He did not. These issues are, therefore, waived. 42

Pa.C.S. § 9544(b).

       In his second issue, Appellant alleges that the trial court abused its

discretion in resentencing him without allowing him the opportunity to

withdraw his guilty plea. Appellant’s Br. at 11. Appellant did not raise this

issue in his PCRA Petition and it is, thus, waived. See Pa.R.A.P. 302(a) (issues

not raised in trial court are waived). See also 42 Pa.C.S.A. § 9544(b);

Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (concluding that

issues not raised in a PCRA petition are waived and cannot be considered for

the first time on appeal).6




____________________________________________

6Even if he had raised it in his PCRA Petition, we would conclude it is waived
because he should have raised this issue on direct appeal. 42 Pa.C.S. §
9544(b).

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Issue 4 – Ineffective Assistance of Trial Counsel

      Appellant challenges the effectiveness of trial counsel’s assistance by

contending that, after the court resentenced him, defense counsel should have

moved for the immediate withdrawal of Appellant’s guilty plea because he

received an excessive sentence.     Appellant’s Br. at 14-16. No relief is due.

      The   law   presumes    counsel    has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence 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

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      In order to withdraw a guilty plea after the imposition of sentence, a

defendant must make a showing of prejudice that resulted in a “manifest

injustice.” Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super. 2019)

(citation omitted). “A defendant meets this burden only if he can demonstrate




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that his guilty plea was entered involuntarily, unknowingly, or unintelligently.”

Id. (citation omitted).

      A request to withdraw a guilty plea after sentencing is subject to higher

scrutiny because “courts strive to discourage [the] entry of guilty pleas as

sentence-testing devices.” Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.

Super. 2002).

      Here, Appellant has not asserted that he entered his guilty plea

involuntarily, unknowingly, or unintelligently. Rather, his claim that counsel

should have asked to withdraw his guilty plea after re-sentencing is because

he is unhappy with his state prison sentence. Based on the above case law,

trial counsel would have no cognizable basis to request the withdrawal of the

guilty plea.   Accordingly, because the underlying issue has no merit, this

ineffectiveness claim warrants no relief.

Issue 5 – Cumulative Effect of “Errors”

      Appellant next contends that the cumulative effect of the errors asserted

above resulted in the denial of his right to due process and the fundamental

fairness of the proceedings. Appellant’s Br. at 16-17. As explained above,

Appellant waived issues 1 through 3 and issue 4 has no merit. Accordingly,

there is no error for us to consider as accumulating into prejudice and there

is no basis to grant relief on this issue.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/03/2019




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