J-S46019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

ERIC KEITH WINSTON,

                         Appellant                 No. 2358 EDA 2014


                Appeal from the PCRA Order of August 4, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0003270-2012

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 17, 2015

      Appellant, Eric Keith Winston, appeals from the order entered on

August 4, 2014 dismissing his first petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual background and procedural history of this case are as

follows.   On June 22, 2011, Appellant met with his probation officer.   His

probation officer asked for his cell phone and the keys to his car.      The

probation officer informed Appellant that he would be searching Appellant’s

cell phone and car for illegal contraband. Appellant informed his probation

officer that there was an image of a naked 16-year-old female on his cell

phone and a picture of Appellant’s penis that he sent to the minor female.

Upon searching the cell phone, Appellant’s probation officer found two
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pictures of a naked 14-year-old1 female and a picture of Appellant’s penis.

After    further   questioning,   Appellant    also   admitted   to   viewing   child

pornography on his cell phone within the past two weeks.

        On September 19, 2012, Appellant entered into a negotiated plea

agreement with the Commonwealth.              In exchange for the Commonwealth

waiving the 25 to 50 year mandatory minimum sentence and agreeing to

recommend an aggregate sentence of 10 to 20 years’ imprisonment,

Appellant pled guilty to possession of child pornography, 2 unlawful contact

with a minor,3 and criminal use of a communication device.4 After pleading

guilty, Appellant was assessed by the Sexual Offender Assessment Board

and a privately retained physiatrist, Dr. Steven Samuel.

        On January 22, 2013, Appellant was sentenced to an aggregate term

of 8 to 16 years’ imprisonment and was designated as a sexually violent

predator.5    Appellant received a sentence less than that agreed to in his

negotiated plea agreement because the Commonwealth reviewed Dr.


1
 Although Appellant believed the female was 16 years old, she was in fact
14 years old. N.T., 1/22/13, at 7.
2
    18 Pa.C.S.A. § 6312(d)(1).
3
    18 Pa.C.S.A. § 6318(a)(1).
4
    18 Pa.C.S.A. § 7512(a).
5
  Appellant received consecutive three to six year sentences for possession
of child pornography and unlawful contact with a minor. In addition,
Appellant received a two to four year sentence for criminal use of a
communication device.


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Samuel’s report and determined that 8 to 16 years’ imprisonment was an

appropriate sentence. Appellant did not file a direct appeal.

      On January 21, 2014, Appellant filed a counseled PCRA petition. On

July 3, 2014, the PCRA court issued notice of its intent to dismiss the PCRA

petition without an evidentiary hearing. On August 4, 2014, the PCRA court

dismissed the petition. This timely appeal followed.6

      Appellant presents one issue for our review:

      Whether the [PCRA c]ourt erred by denying []Appellant’s PCRA
      [p]etition when trial counsel was clearly ineffective for failing to
      present Dr. Samuel (or his report) at sentencing so that the
      [trial c]ourt would have the benefit of medical opinions as to the
      Appellant’s state of mind in order to fashion an appropriate
      sentence?

Appellant’s Brief at 4.

      “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. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal

quotation marks and citation omitted).      “In PCRA appeals, our scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.”   Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,




6
  The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Nonetheless, on March
26, 2015, the PCRA court issued an opinion explaining its rationale for
dismissing Appellant’s petition.


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779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations

omitted).

     In his lone issue on appeal, Appellant claims his trial counsel was

ineffective. As our Supreme Court explained:

     [T]o prove counsel ineffective, [a PCRA] petitioner must
     demonstrate: (1) the underlying claim has arguable merit; (2)
     no reasonable basis existed for counsel’s actions or failure to
     act; and (3) the petitioner 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. Counsel is presumed to have rendered effective
     assistance.

     A court is not required to analyze the elements of an
     ineffectiveness claim in any particular order of priority; instead,
     if a claim fails under any necessary element of the
     ineffectiveness test, the court may proceed to that element first.
     Finally, counsel cannot be deemed ineffective for failing to raise
     a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

     Appellant is unable to show actual prejudice as the result of trial

counsel’s failure to submit Dr. Samuel’s report or call Dr. Samuel at

sentencing.   As noted above, Appellant entered into a negotiated plea

agreement with the Commonwealth.       The Commonwealth agreed to waive

the 25 to 50 year mandatory minimum sentence and instead recommend a

10 to 20 year sentence. See N.T., 1/22/13, at 7-8. Appellant’s trial counsel

then provided the Commonwealth with Dr. Samuel’s report and the

Commonwealth agreed to reduce the recommended sentence to 8 to 16



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years’ imprisonment. See id. at 4 (“[Defense counsel] provided me with a

report by a Dr. Steven Samuel, who I’m familiar with from prior cases.

Based upon some information in Dr. Samuel’s report I am looking to modify

my recommendation for sentencing slightly downward from what I said

earlier. In essence, instead of what I had negotiated, 10 to 20 years, I’m

prepared to recommend to the [c]ourt a sentence of [8] to 16 years.”). The

trial court then imposed the sentence recommended by the Commonwealth.

      Appellant did not allege that if trial counsel submitted Dr. Samuel’s

report or called Dr. Samuel, the trial court would have further reduced

Appellant’s sentence below that which the Commonwealth recommended.

See generally PCRA petition, 1/21/14. Therefore, Appellant failed to show

how the trial court’s review of Dr. Samuel’s report would have changed the

outcome of his sentencing proceeding.       Appellant’s sole allegation, that it

would have provided the trial court with medical information regarding his

state of mind, is insufficient to show actual prejudice.

      Furthermore, even if Appellant alleged that the trial court would have

imposed a lesser sentence with Dr. Samuel’s report, his argument lacks

merit.   Appellant argues that Dr. Samuel would have testified that: (1)

Appellant never had physical contact with the victim; (2) Appellant accepted

responsibility; (3) Appellant was a low-risk offender; and (4) Appellant was

amenable to treatment. None of this information was new to the trial court.

The trial court was aware that Appellant never had physical contact with his



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victim and that he accepted responsibility for his actions. The trial court also

was aware of Appellant’s risk level and his amenability to treatment as

Appellant was on probation for a similar crime at the time of the instant

offense.   Since Appellant failed to demonstrate actual prejudice, he is not

entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2015




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