J-S44004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARIEN GRADY                               :
                                               :
                       Appellant               :   No. 3063 EDA 2017

                  Appeal from the PCRA Order August 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011068-2009


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 03, 2018

        Darien Grady appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, denying his petition filed under the Post-

Conviction Relief Act (PCRA).1 After careful review, we affirm.

        The trial court summarized the facts pertinent to this appeal as follows:

        On May 6, 2010, [] Grady pled guilty to criminal conspiracy and
        possession of cocaine with intent to deliver. He was sentenced to
        14 to 30 months in prison, 42 months of probation for the drug
        charge, and 72 months of probation for the conspiracy charge. On
        July 24, 2012, [] Grady was arrested again, but the case was
        dismissed for lack of evidence. A Daisy Kates[2] hearing was held

____________________________________________


1   42 Pa.C.S. § 9541.

2 See Commonwealth v. Kates, 305 A.2d 701 (Pa. 1973). A Daisy Kates
hearing is a revocation hearing on an alleged “direct violation” of probation or
parole where the alleged violation is premised upon conduct that is the subject
of an open criminal case, and the hearing is held prior to defendant’s trial on
the new charges.
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      on January 11, 2013, at which [] Grady was found to have violated
      his probation. On May 16, 2013, [ ] Grady was sentenced to a
      minimum term of seven and a half years and a maximum term of
      15 years in prison followed by five years of probation. On May 20,
      2013, [] Grady filed a petition to vacate and reconsider the
      sentence, which was denied on May 30, 2013. [] Grady appealed
      this decision to the Superior Court of Pennsylvania, which affirmed
      the Court of Common Pleas’ denial of reconsideration on
      September 26, 2014.

      [] Grady then filed a timely pro se PCRA petition on February 2,
      2015. [] Grady amended his petition multiple times until his
      court-appointed counsel submitted the final amended version on
      June 22, 2016. This final amended petition alleged that [ ] Grady’s
      counsel[,] who appealed his motion for reconsideration to the
      Superior Court[,] was ineffective for failing to raise the issue of a
      harsh and unreasonable sentence. Although scheduled for a
      hearing on August 22, 201[7], [] Grady’s PCRA petition was
      dismissed after the parties agreed that the Court could decide it
      [without a hearing].

Trial Court Opinion, 12/28/17, at 1-2 (internal citations and footnotes

omitted).

      The PCRA court dismissed Grady’s petition on August 22, 2017. This

timely appeal follows, in which Grady asserts that the PCRA court erred in

denying relief as to his claim that counsel was ineffective for failing to

challenge his “harsh and unreasonable” sentence on direct appeal.

      Our scope and standard of review of decisions denying relief pursuant

to the PCRA are well-settled. 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.

Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). Our review of

questions of law is de novo. Id. at 625. Under Pennsylvania Rule of Criminal



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Procedure 907, the PCRA court may dismiss a petition without a hearing if,

after reviewing the petition, it is “satisfied from this review that there are no

genuine issues concerning any material fact,” and thus, the defendant is not

entitled to relief.   Pa.R.Crim.P. 907(1).      When performing this review, the

court must find that “the facts alleged would not, even if proven, entitle the

defendant to relief[.]” Id. at comment.

      Furthermore, when claiming ineffectiveness of counsel, the defendant

bears the burden of proof. Commonwealth v. Ligons, 971 A.2d 1125, 1137

(Pa. 2009). Counsel is presumed to be effective and in order to overcome this

presumption, a defendant must show 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.” Id.

      Here, the PCRA court did not reach the merits of Grady’s ineffectiveness

claim. Rather, the court concluded that Grady’s claim that his counsel was

ineffective for failing to challenge the harshness of his sentence “constitutes

a challenge to the discretionary aspect of his sentence, which is not cognizable

in a PCRA proceeding.” Trial Court Opinion, supra at 3. The PCRA court was

incorrect.   A claim regarding the discretionary aspects of a sentence is

cognizable under the PCRA when it is raised in the context of an

ineffectiveness claim. Commonwealth v. Whitmore, 860 A.2d 1032 (Pa.

Super. 2004), rev’d in part on other grounds in Commonwealth v.

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Whitmore, 912 A.2d 827 (Pa. 2006). Accordingly, we proceed to a review of

Grady’s claim.

       Grady’s ineffectiveness claim ultimately fails because he cannot

demonstrate that his underlying claim – that his sentence is harsh and

excessive – is meritorious.3         It is well-settled that, “[t]he imposition of

sentence following the revocation of probation ‘is vested within the sound

discretion of the trial court, which, absent an abuse of that discretion, will not

be disturbed on appeal.’” Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.

Super 2000), quoting Commonwealth v. Smith, 669 A.2d 1008, 1011 (Pa.

Super. 1996). An abuse of discretion is more than a mere error of judgement.

Sierra, supra at 913. Rather, for this court to find an abuse of discretion,

the trial court’s judgment must be manifestly unreasonable, partial,

prejudiced, biased or the result of ill-will. Id.

       Nothing in the record indicates that the trial court abused its discretion

in resentencing Grady. Under Pennsylvania’s Sentencing Code, a trial court

must “follow the general principle that the sentence imposed should call for

confinement that is consistent with the protection of the public, the gravity of

the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. §

9721(b). Once probation is revoked, “the sentencing alternatives available to



____________________________________________


3We may affirm a lower court’s decision on any basis. Commonwealth v.
Lauro, 819 A.2d 100 (Pa. Super. 2003).

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the court shall be the same as were available at the time of initial sentencing.”

42 Pa.C.S.A. § 9771(b).

      Section 9771 of the Sentencing Code governs the imposition of sentence

following revocation of probation, in relevant part, as follows:

      (b) Revocation.—The court may revoke an order of probation upon
      proof of the violation of specified conditions of the probation. Upon
      revocation the sentencing alternatives available to the court shall
      be the same as were available at the time of initial sentencing,
      due consideration being given to the time spent serving the order
      of probation.

      (c) Limitation on sentence of total confinement.—The court shall
      not impose a sentence of total confinement upon revocation
      unless it finds that:

         (1) the defendant has been convicted of another crime; or

         (2) the conduct of the defendant indicates that it is likely
         that he will commit another crime if he is not imprisoned;
         or

         (3) such a sentence is essential to vindicate the authority of
         the court.

42 Pa.C.S.A. § 9771.

      Moreover,

      [s]ection 9721, which governs sentencing generally, provides that
      in all cases where the court resentences an offender following
      revocation of probation the court shall make as a part of the
      record, and disclose in open court at the time of sentencing, a
      statement of the reason or reasons for the sentence imposed.
      Failure to comply with these provisions shall be grounds for
      vacating the sentence or resentence and resentencing the
      defendant. Additionally, this Court has noted that the reasons
      stated for a sentence imposed should reflect the sentencing
      court’s consideration of the criteria of the Sentencing Code, 42
      Pa.C.S.A. § 9701 et seq., the circumstances of the offense, and
      the character of the offender.



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Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 185 (Pa. Super. 2016)

(internal citations, quotation marks and ellipses omitted).

      Here, the trial court amply set forth its reasoning for sentencing Grady

as it did. Most notably, the court cited Grady’s extensive history of recidivism

and his apparent inability to avoid criminal conduct while under court

supervision. The court stated that Grady was in “massive technical violation[].

He has 20 adult arrests, 12 convictions, five aliases, which we just went

through. He’s got 12 violations. He’s been revoked 11 times. . . . He does

abscond.   He has a huge number of bench warrants.”           N.T. Resentencing

Hearing, 5/16/13, at 15-16. The court acknowledged Grady’s long-standing

problems with drug addiction, but concluded that:

      [Grady has] quite a few arrests and quite a few convictions and
      quite a few violations. So it’s obvious that probation would not be
      an appropriate sentence. And everything that everybody has tried
      with you hasn’t worked. So I have to balance what your
      rehabilitation needs are against my duty to protect the public. I
      think what’s been going on throughout your career is everybody
      has been worried about rehabilitating you and not so worried
      about protecting the public from someone like you, who at worst
      will rob, and at best will commit petty theft.

Id. at 17-18.

      The trial court also had the benefit of a presentence investigation report

(“PSI”), which detailed Grady’s repeated inability to conform to the

requirements of his probation. Commonwealth v. Devers, 546 A.2d 12 (Pa.

1988) (when sentencing court has benefit of PSI, we presume that court was

fully apprised of Appellant’s characteristics and properly weighed those


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factors). The court was thus able to balance Grady’s criminal history with

mitigating factors, such as his drug addiction and troubled family background,

and to take all of that information into account in fashioning a sentence it

deemed appropriate in light of the statutory requirements.

      Because the trial court did not abuse its discretion in sentencing Grady,

counsel cannot be deemed ineffective for failing to raise a sentencing claim on

direct appeal. Accordingly, Grady is entitled to no PCRA relief on this issue.

      Nor was Grady entitled to an evidentiary hearing before the PCRA court.

“A PCRA petitioner is not entitled to an evidentiary hearing as a matter of right

but only where the petition presents genuine issues of material fact. A PCRA

court’s decision denying a claim without a hearing may only be reversed upon

a finding of an abuse of discretion.” Commonwealth v. Walker, 36 A.3d 1,

17 (Pa. 2011). As set forth above, Grady’s ineffectiveness claim was meritless

on its face. Accordingly, it was appropriate for the PCRA court to deny his

petition without an evidentiary hearing.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18


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