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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TROY MARTIN

                            Appellant                No. 2177 EDA 2015


                   Appeal from the PCRA Order July 14, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1302354-2006


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 03, 2016

        Troy Martin appeals from the order entered in the Court of Common

Pleas of Philadelphia County denying his petition pursuant to the Post-

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

        On April 11, 2008, Martin entered a negotiated guilty plea to robbery,

aggravated assault, and possession of an instrument of crime (PIC).

Pursuant to the terms of his negotiated guilty plea, the trial court sentenced

him to an aggregate term of ten to thirty years’ incarceration.

        Martin filed a notice of appeal on April 16, 2008. On April 30, 2008,

the trial court ordered Martin to file a concise statement of errors
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Because Martin

failed to file a Rule 1925(b) statement, the trial court filed an opinion on July

24, 2008, indicating that Martin had waived any claims on appeal.            On

October 7, 2008, this Court dismissed Martin’s appeal for failure to file a

brief.

         Following the reinstatement of Martin’s appellate rights nunc pro tunc,

he filed a timely notice of appeal and a Rule 1925(b) statement alleging

several errors by the trial court. The trial court filed an opinion addressing

Martin’s asserted errors on March 2, 2010.        This Court affirmed Martin’s

judgment of sentence on January 21, 2011. Commonwealth v. Martin, 23

A.3d 1087 (Pa. Super. 2010) (unpublished memorandum). Martin then filed

a timely petition for allowance of appeal, which our Supreme Court denied

on June 30, 2011. Commonwealth v. Martin, 23 A.3d 1055 (Pa. 2011).

         On February 24, 2012, Martin filed a timely pro se PCRA petition

raising eleven issues for review, and on June 6, 2012, the court appointed

Peter A. Levin, Esquire, to represent Martin. Counsel filed an amended PCRA

petition on January 21, 2014, alleging three additional grounds for relief.

The trial court dismissed Martin’s PCRA petition on July 15, 2015.

         Martin filed a timely notice of appeal on July 20, 2015, and on August

13, 2015, he filed a Rule 1925(b) statement alleging that the trial court

erred by denying his PCRA petition without a hearing.        He further alleged

that the trial court erred by denying relief on the claims raised in his

amended PCRA petition that counsel was ineffective for: (1) causing him to

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enter an unknowing and involuntary guilty plea; (2) failing to file post

sentence motions; and (3) failing to provide the court with correct

information regarding DNA costs. Statement of [Errors] Complained of on

Appeal, 8/13/15, at 1.     The trial court filed its Rule 1925(a) opinion on

August 18, 2015.

      On appeal, Martin raises the following issues for our review:

        I.   Whether the PCRA Judge was in error in denying [Martin’s]
             PCRA petition without an evidentiary hearing on the issues
             raised in the amended PCRA petition regarding trial
             counsel’s ineffectiveness.

       II.   Whether the PCRA Judge was in error in not granting relief
             on the PCRA petition alleging counsel was ineffective.

Appellant’s Brief, at 8.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      To establish counsel’s ineffectiveness, a petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel had no reasonable

basis for the course of action or inaction chosen; and (3) counsel’s action or

inaction prejudiced the petitioner. Commonwealth v. Burno, 94 A.3d 956,

964 n.5 (Pa. 2014); Strickland v. Washington, 466 U.S. 668 (1984).

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      A failure to satisfy any prong of the ineffectiveness test requires
      rejection of the claim. The burden of proving ineffectiveness
      rests with the Appellant. To sustain a claim of ineffectiveness,
      Appellant must prove that the strategy employed by trial counsel
      was so unreasonable that no competent lawyer would have
      chosen that course of conduct. Trial counsel will not be deemed
      ineffective for failing to pursue a meritless claim.

Commonwealth v. Rega, 933 A.2d 997, 1019 (Pa. 2007).

      A PCRA court is only required to hold an evidentiary hearing where

there is an issue of material fact.    Pa.R.Crim.P. 909(B)(1)-(2).     “[W]hen

there are no disputed factual issues, an evidentiary hearing is not required.”

Commonwealth v. Morris, 684 A.2d 1037, 1042 (Pa. 1996).                      An

evidentiary hearing is unwarranted where a PCRA petitioner’s offer of proof

is insufficient to establish a prima facie case, or his allegations are refuted

by the existing record. Commonwealth v. Eichinger, 108 A.3d 821, 849

(Pa. 2014).

      First, Martin argues that trial counsel was ineffective for causing him to

enter an unknowing and involuntary plea.       In order to determine whether

Martin entered his plea knowingly, intentionally, and voluntarily, we must

examine the plea colloquy.    At a minimum, a plea colloquy must inform a

defendant of: (1) the nature of the charges; (2) the factual basis for the

plea; (3) the right to be tried by a jury; (4) the presumption of innocence;

(5) the permissible range of sentences; and (6) the fact that the judge is not

bound by the terms of any plea agreement.        Commonwealth v. Bedell,

954 A.2d 1209, 1212 (Pa. Super. 2008). The adequacy of the plea colloquy

and the voluntariness of the resulting plea must be ascertained based on the


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totality   of   the   circumstances   surrounding   the   entry   of   the   plea.

Commonwealth v. Muhammad, 794 A.2d 378, 383- 84 (Pa. Super. 2002).

During the course of a plea colloquy, a defendant has a duty to answer

questions truthfully and cannot later assert that he lied under oath.

Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 2007).

      This Court previously addressed the claim of involuntariness raised by

Martin on direct appeal. This Court offered the following analysis of Martin’s

oral and written plea colloquies under the standard set forth in Bedell:

      The record, as a whole, belies Martin’s claim. The trial court
      provided a thorough oral colloquy to Martin. While at one point
      it appeared Martin believed his agreed upon sentence was for
      10-20 years, the record demonstrates he was properly informed
      what the actual sentence was and, further, he agreed to the
      sentence.    Not only did the oral colloquy clearly state the
      sentence, the written guilty plea colloquy, signed by Martin, also
      clearly stated the negotiated sentence to be 10-30 years’
      incarceration.
                                      ...

      The record as a whole shows Martin entered into the plea with
      his eyes open; it was a knowing, intelligent and voluntary plea.
      The fact he filed an appeal challenging the legality of his
      sentence does not negate the validity of his plea. Rather, it
      appears Martin was simply disappointed with the reality of his
      sentence. Such disappointment does not render a plea invalid
      and is not reason to allow the withdrawal of an otherwise valid
      plea. See Bedell, supra.

Commonwealth v. Martin, 2474 EDA 2009, unpublished memorandum at

4-6 (Pa. Super. filed January 21, 2011).     Accordingly, Martin has failed to

demonstrate that his ineffective assistance of counsel claim has arguable

merit.     See Burno, supra.     Furthermore, the PCRA court did not err in



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failing to grant Martin an evidentiary hearing on this claim because Martin’s

offer of proof was insufficient to establish a prima facie case.            See

Eichinger, supra.

      Next, Martin argues that trial counsel was ineffective for failing to file

post-sentence motions. Our Supreme Court has held that the failure to file

post-sentence motions does not fall within the limited ambit of situations

where a defendant alleging ineffective assistance of counsel need not prove

prejudice to obtain relief. Commonwealth v. Reaves, 923 A.2d 1119 (Pa.

2007). Therefore, Martin bears the burden of pleading and proving that trial

counsel’s failure to file post-sentence motion prejudiced him – meaning

Martin must show that if counsel had filed post-sentence motions, this court

would have granted them. See Commonwealth v. Liston, 977 A.2d 1089,

1092 (Pa. 2009).

      Specifically, Martin alleges that trial counsel was ineffective for failing

to file a post-sentence motion for reconsideration of his sentence.        In its

Rule 1925(a) opinion, the trial court explicitly stated that it would not have

granted a motion to reconsider Martin’s sentence because it was a

negotiated sentence and Martin failed to present any evidence that

warranted reconsideration of the sentence. Trial Court Opinion, 8/18/15, at

14. We agree with the trial court that Martin has failed to prove that he was

prejudiced by trial counsel’s failure to file post-sentence motions. Therefore,

we agree with the trial court that Martin’s claim that counsel was ineffective

for failure to file post-sentence motions is meritless.    See Burno, supra.

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We also hold that the PCRA court did not err in declining to grant Martin an

evidentiary hearing on this claim because Martin’s offer of proof was

insufficient to establish a prima facie case. See Eichinger, supra.

      Finally, Martin argues that trial counsel was ineffective for failing to

provide him with accurate information regarding DNA costs. Martin appears

to take umbrage at the fact that he was required to bear the cost of DNA

testing although the Commonwealth ordered the tests and that no hearing

was held to determine whether he was able to bear the cost of the tests.

Appellant’s Brief, at 9. Martin cites two cases, Osbourne v. U.S., 557 U.S.

52 (2009), and Commonwealth v. Dean, 564 A.2d 1002 (Pa. Super.

1989), which he claims support the proposition that a criminal defendant is

not responsible for the cost of DNA testing tied to his prosecution. Id.

      However, as correctly recognized by the trial court, Pennsylvania law

requires that defendants pay for laboratory testing costs incurred in the

prosecution of their criminal cases. See 42 Pa.C.S. § 1725.3. Furthermore,

the trial court has correctly pointed out that neither Osbourne nor Dean

supports Martin’s claim that this statute should not apply to him. Therefore,

we find that Martin had no reasonable basis on which to challenge the trial

court’s imposition of DNA costs upon him. As a result, we hold that Martin’s

ineffectiveness claim does not have arguable merit and that Martin was not

prejudiced by trial counsel’s failure to provide him with accurate information

regarding DNA costs. See Burno, supra. Furthermore, we hold that the

PCRA court did not err in failing to grant Martin an evidentiary hearing on

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this claim because Martin’s offer of proof was insufficient to establish a prima

facie case. See Eichinger, supra.

       Order affirmed.2

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




____________________________________________


2
  In its Rule 1925(a) opinion, the trial court notes that counsel filed an
amended PCRA petition raising three additional grounds for relief. However,
because counsel did not seek leave to amend the petition, the court asserts
that pursuant to Commonwealth v. Baumhammers, 92 A.3d 708, 730-31
(Pa. 2014), the three issues raised in the amended PCRA petition should be
considered waived. Martin’s pro se petition raises the following question:
“Was trial counsel ineffective for . . . not filing post-sentence motions?”
Memorandum of Law in Support of PCRA Petition?” 2/24/12, at 2.
Accordingly, this issue was clearly included in both the pro se and amended
petitions. The pro se Petition also raises the following question: “Was the
defendant[’s] guilty plea knowing, intelligent and voluntary.” Id. The
amended petition presents the same issue as an ineffectiveness claim. The
pro se petition also raises the following question: “Did the trial court err in
imposing DNA-lab fines, when, in fact, [the] trial court had full knowledge
that [the] [C]ommonwealth order[ed] the blood work to be completed.” Id.
Again, the amended petition raises this claim as an ineffectiveness claim.
Because the post sentence motion, guilty plea and DNA costs issues can be
construed as reasonably subsumed in the original petition, Baumhammers,
supra at 731, we conclude they are not waived.



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