J-S67037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID GREGORY GEHR                         :
                                               :
                       Appellant               :   No. 148 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-0001010-2015


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 26, 2020

        Appellant, David Gregory Gehr, appeals pro se from the order entered

in the Court of Common Pleas of Lycoming County dismissing his first petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546,

after issuing Pa.R.Crim.P. 907 notice that the court had granted court

appointed counsel’s petition to withdraw and discerned no arguable merit to

Appellant’s petition. Herein, Appellant claims that ineffective assistance of all

prior counsel and trial court error require the withdrawal of what he contends

was an invalid guilty plea. We affirm.

        In our memorandum decision Commonwealth v. Gehr, No. 1012 MDA

2016, unpublished memorandum at 1-2 (Pa.Super. filed April 13, 2017), we

set forth the underlying facts and procedural history of the present matter:

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      On January 1, 2015, Gehr backed his vehicle into David Lunger’s
      (“Lunger”) vehicle. Gehr fled the scene without exchanging any
      information with Lunger. Lunger called the police and began to
      follow Gehr. The police eventually stopped Gehr. Gehr was found
      to be intoxicated, and possessed a small amount of marijuana, a
      glass pipe, and a .22 caliber rifle. Gehr told the police that he was
      drinking vodka at a friend’s home, and that he smokes marijuana
      every day to relax. The police arrested Gehr and transported him
      to the hospital, where Gehr refused to submit to a blood test.
      Subsequently, the police determined that Gehr was a convicted
      felon and was not permitted to possess a firearm.

      On January 5, 2016, Gehr pled guilty to the above-mentioned
      crimes[, namely, Persons not to Possess a Firearm, 18 Pa.C.S.A.
      § 6105(a)(1), Driving Under the Influence (“DUI”)-Refusal, 75
      Pa.C.S.A. § 3802(a)(1), and Possession of a Small Amount of
      Marijuana, 780-113(a)(31).]. On April 20, 2016, the trial court
      sentenced Gehr to five to ten years in prison for the person not to
      possess a firearm conviction, and a consecutive prison term of one
      and one-half to five years for the DUI-refusal conviction. The trial
      court also imposed fines upon Gehr. The trial court did not impose
      any further prison sentences on the remaining convictions.

      Gehr filed Post-Sentence Motions, seeking to withdraw his guilty
      plea and reconsideration of his sentence. The trial court denied
      Gehr’s request to withdraw his plea, but granted Gehr’s
      reconsideration of sentence request. On June 7, 2016, the trial
      court imposed the same sentences for the person not to possess
      a firearm and DUI-refusal convictions, but imposed them
      concurrently. The trial court did not change the remaining part of
      the prior sentencing Order. Gehr filed a timely Notice of Appeal.

Id.

      This Court rejected Gehr’s six discrete challenges to the validity of his

guilty plea as frivolous, finding that the record established he entered his plea

knowingly, voluntarily, and intelligently.    Gehr, we concluded, specifically

stated he understood the charges against him and admitted to the facts that

led to the charges. He acknowledged he would forego certain delineated rights



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by pleading guilty, confirmed he was pleading of his own free will, and

expressed satisfaction with counsel’s representation.        He indicated he

understood the permissible ranges of sentence and that no specific sentence,

whether county or state, was promised to him.

      This Court, however, sua sponte addressed the legality of Gehr’s

sentence for DUI-refusal conviction under the then-recent decision of

Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016) (holding “a breath

test, but not a blood test, may be administered as a search incident to a lawful

arrest for drunk driving.”). Finding no statutory authority to impose enhanced

penalties for refusing to provide a blood sample when requested by police, we

vacated judgment of sentence and remanded for resentencing. In so doing,

we clarified that because Appellant had pled guilty to DUI under section

3802(a)(1), second offense, the trial court could impose the same sentence

on remand, although it could not consider the mandatory minimum sentence

for DUI-refusal in resentencing Appellant. Gehr, supra at 9, 10 n.6. This

Court, therefore, affirmed Appellant’s convictions but vacated judgment of

sentence and remanded for resentencing consistent with our decision.

      At Appellant’s resentencing hearing of August 10, 2017, the trial court

acknowledged our decision but indicated, nonetheless, the decision would not

have a functional effect on the term of Appellant’s sentence, as the court had

already run the DUI sentence concurrently to the Persons not to Possess

sentence of 5 to 10 years’ incarceration. N.T., 8/10/17, at 1-3. Substitute

counsel from the Public Defender’s Office advised the court, however, that

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Appellant wished to continue the proceeding so he could talk to appointed

counsel from the Defender’s Office. N.T. at 3-4.

       When asked by the court to explain his position, Appellant stated he was

dissatisfied with appointed counsel’s representation during the guilty plea

phase, submission of an Anders brief and motion for withdrawal on direct

appeal, and alleged failure to reply to two letters written by Appellant in the

months leading to the present sentencing hearing. N.T. at 3-15. The court

initially responded by discussing Appellant’s plea colloquy, wherein Appellant

had specifically denied harboring any dissatisfaction with plea counsel, the

terms of his plea agreement, or the possible sentence that would follow. N.T.

at 11-16.

       The court also opined that Appellant’s current objections failed to relate

to the present hearing, the discrete purpose of which was to resentence

Appellant consistent with the Superior Court’s invalidation of the DUI-refusal

mandatory sentence.           Specifically, the court maintained that because

Appellant had knowingly entered an open guilty plea to DUI at 3802(a)(1),1
____________________________________________


1 Appellant argued that he had pled guilty to DUI-refusal and not DUI-general
impairment, such that a new guilty plea hearing was required. As noted by
this Court in Appellant’s direct appeal, however, the criminal information
against Appellant charged him under 75 Pa.C.S. § 3802(a)(1). It was well-
settled at the relevant time that DUI-refusal neither constituted a separate
crime from DUI-general impairment nor added an element to the offense at
Section 3802. Rather, it simply supplied a sentencing enhancement, provided
at Section 3804(c), upon a conviction under Section 3802 where refusal to
submit to a blood or breath test occurred. See Commonwealth v. Kimmel,
125 A.3d 1272 (Pa.Super. 2015) (citing Commonwealth v. Mobley, 14 A.3d



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the court had run the DUI sentence concurrent to the Persons not to Possess

sentence,2 and the Superior Court had affirmed this conviction and instructed

that the same sentence could attach as long it did not reflect consideration of

the DUI-refusal mandatory minimum statute, the Superior Court’s order and

remand did not affect the original sentencing scheme.

       The court, therefore, denied Appellant’s requests for a continuance

and/or a new guilty plea hearing.          Consistent with its earlier statement of

intent, the court imposed the lowest possible DUI sentence of five days to six

months’ incarceration and ran it concurrently to the Persons not to Possess

sentence, for an aggregate sentence of five to ten years’ incarceration.      N.T.

at 5, 17-20.      The court advised Appellant of his options with respect to

asserting the ineffective assistance of prior counsel, and it concluded the

hearing. N.T. at 18-23.

       On September 19, 2017, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel. The court conducted a status conference on

December 14, 2017, at which time it granted counsel an additional sixty days

to file either an amended PCRA petition or a no merit letter pursuant to
____________________________________________


887, 891 (Pa.Super. 2011).        Presently, and in conformance with the
Birchfield decision, the General Assembly has amended Section 3804(c) to
apply only to refusals of breath tests or testing of blood pursuant to a valid
search warrant.

2With an offense gravity score of 10 for Persons not to Possess and Appellant’s
prior record score of 5, the standard guideline range for the offense was 60 to
72 months. As such, Appellant’s minimum sentence lies at the bottom of the
standard guideline range.


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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

      On January 22, 2018, counsel filed a motion to withdraw as counsel and

a Turner/Finley no-merit letter. On February 28, 2018, the PCRA court filed

an Order and Opinion granting counsel’s petition and providing Rule 907 notice

to Appellant of its intent to dismiss his petition as meritless in twenty days.

Appellant responded by filing another PCRA petition and amendment that

essentially reiterated the issues already raised in his first PCRA petition.

Therefore, on December 20, 2018, the PCRA Court filed an Opinion and Order

dismissing all of Appellant’s PCRA petition as well as his purported subsequent

petition and amendments raising the same issues. This timely pro se appeal

followed.

      Appellant presents the following questions for this Court’s consideration:

      1. [Should] the Petitioner be granted his direct appeal rights back,
         on all of his initial claims, that trial counsel forfeited because of
         his abandonment[?]

      2. [Did] the lower court commit[ ] reversible error in it’s [sic]
         failure    to     properly    address      counsel     Joshua
         Bower/ineffectiveness concerning petitioner open plea hearing,
         violating petitioner’s Sixth Amendment right for effective
         assistance of counsel[?]


      3. [Did] the lower court commit[ ] reversible error in it’s [sic]
         failure to properly address counsel Joshua Bower/counsel Ravi
         Marfata[‘s] ineffectiveness, for failing to go over with petitioner
         his criminal history, offense gravity score and prior record
         score[?]




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      4. [Were] trial counsel Joshua Bower/counsel Ravi Marfata were
         ineffective for advising and inducing petitioner to plead guilty
         and in return petitioner would be guaranteed a county sentence
         instead of a state sentence in which petitioner received a 1 ½
         year to 5 year [sentence], to run concurrent with a 5 years to
         [10] years state sentence[?]

Brief for Appellant, at 2.

      Our scope and standard of review is well settled:

      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.
      Because most PCRA appeals involve questions of fact and law, we
      employ a mixed standard of review. We defer to the PCRA court's
      factual findings and credibility determinations supported by the
      record. In contrast, we review the PCRA court's legal conclusions
      de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.Super. 2015)

(citations omitted).

             When the PCRA court has dismissed a petitioner’s PCRA
      petition without an evidentiary hearing, we review the PCRA
      court’s decision for an abuse of discretion. Commonwealth v.
      Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
      discretion to dismiss a petition without a hearing when the court
      is satisfied that there are no genuine issues concerning any
      material fact, the defendant is not entitled to post-conviction
      collateral relief, and no legitimate purpose would be served by
      further proceedings. Id. To obtain a reversal of a PCRA court’s
      decision to dismiss a petition without a hearing, an appellant must
      show that he raised a genuine issue of material fact which, if
      resolved in his favor, would have entitled him to relief, or that the
      court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      In order to be eligible for PCRA relief, a petitioner must plead and prove,

inter alia, “[t]hat the allegation of error has not been previously litigated or

waived.” 42 Pa.C.S. § 9543(a)(3). Pursuant to Section 9544, an issue has

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been “previously litigated if ... the highest appellate court in which the

petitioner could have had review as a matter of right has ruled on the merits

of the issue.” 42 Pa.C.S. § 9544(a)(2). Furthermore, an issue is waived “if

the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state post conviction

proceeding.” 42 Pa.C.S. § 9544(b). Moreover, in order to preserve an issue

for appellate review, a petitioner must also include the claim in his PCRA

petition. See Commonwealth v. Baumhammers, 92 A.3d 708, 731 (Pa.

2014) (explaining, “waiver cannot be avoided solely by reference to

[petitioner's] Concise Statement of Matters Complained of on Appeal, as such

a statement, which is provided after the notice of appeal has already been

filed, cannot operate to add new substantive claims that were not included in

the PCRA petition itself.”).

      Appellant’s claims collectively assert that all prior counsel ineffectively

prepared for his guilty plea and/or provided him with incorrect information

regarding the possibility of receiving a county sentence should he plead guilty.

His further charges the court with erroneously proceeding with the guilty plea

hearing under such circumstances. Finally, Appellant also contends that PCRA

counsel failed to pursue these claims appropriately.

      To obtain relief under the PCRA premised on an ineffectiveness claim, a

petitioner must establish, by a preponderance of the evidence, that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

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v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                 “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      With regard to claims of ineffectiveness related to the entry of plea, we

further note:

      Ineffective assistance of counsel claims arising from the plea
      bargaining-process are eligible for PCRA review. Allegations of
      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant to enter into an involuntary or unknowing plea. Where
      the defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases.

      The standard for post-sentence withdraw of guilty pleas dovetails
      with the arguable merit/prejudice requirements for relief based on
      a claim of ineffective assistance of plea counsel, ... under which
      the defendant must show that counsel’s deficient stewardship
      resulted in a manifest injustice, for example, by facilitating the
      entry of an unknowing, involuntary, or unintelligent plea. This
      standard is equivalent to the “manifest injustice” standard
      applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations omitted).

      Initially, we note that Appellant has failed to include his first enumerated

issue in his court-ordered Pa.R.A.P. 1925(b) concise statement of matters


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complained of on appeal. Rule 1925(b) provides that a judge ‘may enter an

order directing the appellant to file of record in the trial court and serve on

the judge a concise statement of the errors complained of on appeal

(‘Statement’).’   The Rule also provides that “[i]ssues not included in the

Statement . . . are waived.”). Pa.R.A.P. 1925(b)(4)(iv).

      In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), our Supreme

Court held that any issues not raised in a court-ordered Rule 1925(b)

statement will be deemed waived. Lord, 719 A.2d at 309. This Court has

held that ‘[o]ur Supreme Court intended the holding in Lord to operate as a

bright-line rule, such that failure to comply with the minimal requirements of

Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.’

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224 (Pa.Super. 2014) (en banc) (emphasis in original) (quoting

Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)).

      Waiver applies, however, only if the court properly served written notice

of the Rule 1925(b) obligations to Appellant and noted on the docket the giving

of such notice. See Presque Isle, 88 A.3d at 226. “[S]trict application of the

bright-line rule in Lord necessitates strict interpretation regarding notice of

Rule 1925(b) orders.” Id. The certified record confirms the court has satisfied

both obligations in this regard.   Therefore, we deem Appellant’s first issue

waived under Rule 1925(b)(4)(iv).

      Appellant’s remaining claims center on the asserted invalidity of his

guilty plea. As noted above, some claims allege trial court error, and it is clear

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from our review of the record that Appellant pressed these claims previously

on direct appeal but to no avail. He may not, therefore, relitigate these claims

on collateral review. See 42 Pa.C.S. § 9544(a)(2). Moreover, to the extent

these claims of trial court error are distinct from what Appellant previously

raised and litigated, they are waived, for he could have raised such claims on

direct appeal. See 42 Pa.C.S. § 9544(b).

      To the extent Appellant’s challenges to the validity of his plea is couched

within ineffective claims, they are not previously litigated or waived, for “an

ineffective assistance of counsel claim is a separate legal issue distinct from

the underlying substantive claim for which counsel allegedly had provided

ineffective assistance.”   Commonwealth v. Derk, 913 A.2d 875, 883 n.6

(Pa. Super. 2006); see also Commonwealth v. Collins, 888 A.2d 564, 573

(Pa. 2005). Nevertheless, Appellant fails to establish arguable merit to any of

the claims assailing the representation he received during his guilty plea

proceedings.

      During his guilty plea colloquy, Appellant expressly denied that coercion

or a promised sentence motivated his plea. Moreover, he unequivocally voiced

his satisfaction with counsel. Nothing he asserts herein places his colloquy in

doubt. It follows, therefore, that Appellant’s bare assertion that PCRA counsel

were ineffective for not advancing the claims of guilty plea counsels’

ineffectiveness likewise cannot prevail, it fails as well, for we may not deem

counsel ineffective for failing to raise a meritless claim. Commonwealth v.

Fears, 86 A.3d 795, 809 (Pa. 2014).

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        Finally, our review of Appellant’s pro se brief discloses that he raises,

for the first time, a challenge to the legality of his sentence asserting a

violation of Alleyne v. United States, 133 S.Ct. 2151 (2013). However,

Alleyne does not apply to Appellant’s case. Alleyne holds that a finder of

fact must find beyond a reasonable doubt any fact that triggers application of

a mandatory minimum sentence for a crime. The sentence at issue here does

not include a mandatory minimum sentence.

        Appellant pled guilty following a negotiated plea and received a five to

ten year sentence for Persons not to Possess under a sentencing guideline

matrix based on his prior record score and offense gravity score. Indeed, the

penalty at Section 6105 does not require a mandatory minimum sentence,

Appellant specifically pled guilty to the facts that supported grading as a felony

of the second degree, and he received a minimum sentence at the bottom of

the standard range and a maximum sentence within the statutory limit for a

felony of the second degree. See 18 Pa.C.S.A. § 1103(2) (setting maximum

sentence for felony of second degree at not more than ten years). Nor did

the court impose a mandatory minimum sentence when resentencing

Appellant on his DUI general impairment conviction, which Appellant, again,

had already supported through his admission to all requisite facts during his

plea.    Therefore, we conclude Appellant’s sentence is not illegal under

Alleyne.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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