J-S84011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
SEAN MICHAEL EYRICH                      :
                                         :
                   Appellant             :    No. 1061 MDA 2017

                 Appeal from the PCRA Order June 13, 2017
 In the Court of Common Pleas of Berks County Criminal Division at No(s):
                          CP-06-CR-0003586-2015


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 01, 2018

      Sean Michael Eyrich (“Appellant”) appeals pro se from the order

denying his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.        After careful review, we

reverse and remand.

      This case stems from Appellant driving intoxicated on June 7, 2015,

and causing an accident involving Bryan Koch and R. Lynn Koch, the driver

and passenger of a motorcycle, respectively.       Bryan Koch was seriously

injured and R. Lynn Koch, his wife, was killed. Appellant entered an open

guilty plea on December 17, 2015, to one count each of Homicide by Vehicle

While Driving Under the Influence (“DUI”), Aggravated Assault by Vehicle-
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DUI, and DUI-Highest Rate of Alcohol.1 The trial court sentenced Appellant

to incarceration for an aggregate term of fifty-four months to twenty years.

Additionally, the sentencing order imposed “restitution in the sum of $1.00.”

Sentencing Order, 12/17/15.             Shortly after sentencing, judgment was

entered against Appellant “for the full amount of restitution” in the sum of

$1,851.05.        Entry   of   Judgment        Notice,   12/22/15.    Thereafter,    the

Commonwealth filed a motion to amend restitution, seeking $384,328.77,

which included $19,487.53 to Bryan Koch and $364,841.24 to Socrates, Inc.

“for Mr. Koch’s medical treatment.              Socrates, Inc. provides outsourcing

subrogation services to Capitol BlueCross.”              Motion to Amend Restitution,

1/29/16, at ¶¶ 6–8. Without conducting a restitution hearing, the trial court

granted     the   Commonwealth’s          motion     and    amended    restitution    to

$364,841.24. Order, 3/21/16. Appellant did not file post-sentence motions

or a direct appeal.

       The PCRA court updated the procedural history of this case, as follows:

       On November 30, 2016, Appellant filed a timely pro se Motion
       for Post Conviction Collateral Relief. Following a hearing to
       determine whether Appellant wished to proceed pro se with his
       PCRA petition, on January 6, 2017, this [c]ourt granted
       Appellant’s motion to proceed pro se and allowed Appellant 60
       days to file an amended PCRA petition. On March 21, 2017,
       Appellant filed an amended petition. On June 13, 2017, this
       [c]ourt dismissed Appellant’s amended petition. July 3, 2017,
       Appellant filed a Notice of Appeal to the Superior Court from this
       [c]ourt’s June 13 dismissal. This [c]ourt ordered Appellant to file
____________________________________________


1   75 Pa.C.S. §§ 3735(a), 3735.1(a), and 3802(c), respectively.



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      a timely Concise Statement of Errors Complained of on Appeal,
      which Appellant did on July 25, 2017.

PCRA Court Opinion, 8/8/17, at 1.

      On appeal, Appellant presents the following questions for our review:

      A.    The Appellant’s plea was not made knowingly, intelligently
            and voluntarily, and he has been exposed to a manifest
            injustice due to ineffectiveness of trial/plea counsel, and
            an abuse of discretion/error of law, on the part of the trial
            plea court.

      B.    Trial counsel was ineffective for failing to inform the
            Appellant of the pending decision in Birchfield v. North
            Dakota, 14-1468, U.S. Supreme Court, or the fact that
            Birchfield is not new law but reiteration of the 4 th
            Amendment right to be secure in ones [sic] person and
            free from forced or threatened physical intrusion, such as
            blood draws for DUI testing.

      C.    The trial/plea court abused its discretion and/or erred as a
            matter of law in sentencing the Appellant to both excessive
            and unreasonable sentences in failing to consider both the
            guidelines and mitigating factors.

      D.    The Appellant raises a challenge to the legality of his
            sentence due to an order from the clerk of court for
            $364,841.24 in restitution, which was drafted after a
            hearing was held without notification to, knowledge of, and
            not being able to appear at the hearing either personally or
            by counsel, in violation of Appellant’s Sixth Amendment
            rights, ordering said restitution to be paid to an “unknown
            recipient.”

Appellant’s Brief at 3 (full capitalization omitted; reordered for ease of

disposition).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Appellant’s first two issues challenge the effective assistance of his

plea counsel. According to Appellant, counsel failed to: (1) investigate the

case; (2) obtain an expert toxicology witness; (3) obtain the victim’s medical

records; (4) move for a change of venue and/or venire; (5) advise him

accurately regarding the imminent retirement of the trial judge; and (6)

advise him that a decision in Birchfield v. North Dakota was pending.

Appellant’s Brief at 5–11, 21–25.

      It is presumed that counsel was effective, unless the petitioner proves

otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).

Furthermore, claims of ineffective assistance of counsel (“IAC”) are not self-

proving.   Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

Thus, in order to succeed on an IAC claim, an appellant must demonstrate

(1) that the underlying claim is of arguable merit; (2) that counsel’s

performance lacked a reasonable basis; and (3) that the ineffectiveness of


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counsel caused the appellant prejudice.    Commonwealth v. Pierce, 786

A.2d 203, 213 (Pa. 2001).

      Trial counsel cannot be deemed ineffective for failing to pursue a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc).     Moreover, with regard to the second prong, we have

reiterated that trial counsel’s approach must be “so unreasonable that no

competent lawyer would have chosen it.”     Commonwealth v. Ervin, 766

A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller,

431 A.2d 233 (Pa. 1981)).      In addition, we are mindful that prejudice

requires proof that there is a reasonable probability that, but for counsel’s

error, the outcome of the proceeding would have been different.      Pierce,

786 A.2d at 213. “A failure to satisfy any prong of the ineffectiveness test

requires rejection of the claim of ineffectiveness.”    Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed,

899 A.2d 1067 (Pa. 2006)).     Thus, when it is clear that a petitioner has

failed to meet the prejudice prong of an IAC claim, the claim may be

disposed of on that basis alone, without a determination of whether the first

two prongs have been met. Commonwealth v. Baker, 880 A.2d 654, 656

(Pa. Super. 2005).

      In disposing of Appellant’s myriad IAC claims, the PCRA court opined

as follows:

           Here, [Appellant] fails to meet his burden of proof.
      [Appellant] first claims that “his counsel, Curtis E. Barnes,

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     Esquire, had just [received] discovery in the matter, the day
     before [Appellant’s] plea was tendered”. However, [Appellant]
     fails to identify specific acts demonstrating how his counsel failed
     to effectuate his interests; instead, [Appellant] merely claims
     that “it is blatantly obvious that counsel had nowhere near
     sufficient time to investigate the matter”. There is no showing
     as to how the course of conduct pursued by his counsel did not
     effectuate [Appellant’s] interests in any reasonable way, and
     consequently [Appellant] cannot show how he was prejudiced by
     his counsel’s alleged ineffectiveness. Without this demonstration,
     [Appellant’s] claim must fail.

            [Appellant] also alleges that his counsel was ineffective for
     failing to call an expert witness who “may have shown that
     [Appellant] not only may not have been DUI …, but also may not
     have been the cause of the accident”. However, [Appellant’s]
     claim fails for several reasons. First, a defendant is bound by
     the statements[,] which he makes during his plea colloquy, and
     cannot assert grounds for withdrawing the plea that contradict
     statements he made when he pled guilty. Commonwealth v.
     Lewis, 708 A.2d 497, 502 (Pa. Super. 1998). At the guilty plea
     hearing, [Appellant] admitted that he had been driving with a
     blood alcohol content of .329%.         (N.T. 12/17/15 at p. 7).
     Moreover, [Appellant] fails to understand the effectiveness
     standard with this claim. [Appellant] asserts that “it is very
     possible that the test results were in some way faulty or
     erroneous”, and that an expert “could have proved [Appellant]
     was telling the truth”, but the PCRA does not allow mere
     hypotheticals to advance a claim of ineffectiveness of a
     petitioner’s counsel. . . . [Appellant] has the burden to show
     not merely that a different outcome was possible, but that there
     is a reasonable probability the outcome would have changed.
     [Appellant’s] invention of fantastic hypotheticals not only
     contradict[s] his statements under oath, but simply do[es] not
     meet the standard necessary to make a showing of his counsel’s
     ineffectiveness.

           [Appellant] also attempts to claim that his counsel was
     ineffective for not filing motions for a change of venue or venire.
     This claim, however, must be contrasted with [Appellant’s]
     statements during his guilty plea hearing, in which [Appellant]
     was instructed by the [trial c]ourt that he had an absolute right
     to a jury trial and that, by pleading guilty, he waived that and
     other rights. (N.T. 12/17/15 at p. 4). [Appellant] was not

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     prejudiced by participating in a trial in a jurisdiction he perceived
     to be hostile because [Appellant] waived any right to have a jury
     trial at all. [Appellant’s] wish to proceed with his motions is
     undermined by his statement during his guilty plea hearing, and
     as [Appellant] is bound by the statements made during this
     hearing, this claim [of] ineffectiveness is without merit.

           Additionally, [Appellant] asserts that his counsel was
     ineffective for advising him to plead guilty because, if [Appellant]
     went to trial, he would have received the maximum sentence
     “with newly elected judges”. Likewise, [Appellant] claims that
     the Honorable Judge Boccabella did not retire, and that he,
     [Appellant], received “what amounted to a maximum sentence”
     because of his counsel’s statements.         [Appellant], however,
     bases his claim on a misstatement of facts. Not only did the
     Honorable Judge Boccabella in fact retire, but [Appellant’s]
     sentence, far from “amounting to a maximum”, fell well within
     the statutory range.       Both [Appellant’s] offense under 75
     Pa.C.S.A. § 3735(a) and [Appellant’s] offense under 75
     Pa.C.S.A. § 3735.11 were felonies of the second degree, each of
     which carries a statutory maximum of incarceration for no more
     than 10 years; however, [Appellant] was ultimately sentence[d]
     to a term of 54 months to 20 years of incarceration, within the
     statutory maximum. As [Appellant’s] claim rests upon such a
     false basis, and [Appellant] has not demonstrated in any other
     way how he was prejudiced by his counsel’s actions, his claim
     must fail.

            Finally, to the extent that [Appellant] alleges that his
     counsel was ineffective for failing to request a continuance until
     after the Supreme Court’s decision in Birchfield v. North Dakota,
     136 S.Ct. 2160 (2016), [Appellant’s] claim is wholly without
     merit. “The law is clear that counsel cannot be held ineffective
     for failing to anticipate a change in the law.” Commonwealth v.
     Cox, 983 A.2d 666, 702 (Pa. 2009), citing Commonwealth v.
     Duffey, 889 A.2d 56, 71 (Pa. 2005). The Birchfield decision was
     not decided until over six months after [Appellant] was
     sentenced, and [Appellant] cannot now claim that his counsel
     was ineffective for failing to request a continuance on a matter
     where the Supreme Court’s ultimate decision, and potential
     effect on Pennsylvania law, was still unknown.

PCRA Court Opinion, 8/8/17, at 7–9.


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      Upon review of the evidence in the light most favorable to the

Commonwealth and granting deference to the PCRA court, we find that the

record supports the conclusions of the PCRA court and its ruling is free of

legal error. Rykard, 55 A.3d at 1183. Moreover, we adopt as our own the

well-reasoned analysis of the PCRA court with some additional comments.

      We note the PCRA court did not address Appellant’s allegation that

counsel was ineffective in failing to obtain the medical records of Bryan

Koch. Appellant’s Brief at 6. According to Appellant, Bryan Koch:

      had lost his left eye in a baseball related injury, which occurred
      while he played baseball professionally in Chicago, IL. An injury
      of this nature would have affected the victim’s depth perception,
      peripheral vision, and/or sense of balance.            Given this
      information, and the lack of medical records at the time, there is
      no way that trial/plea counsel could have made an intelligent
      and educated decision to recommend that the Appellant accept a
      plea bargain with a complete lack of information and/or
      investigation into the facts.

Appellant’s Brief at 6. As the Commonwealth points out:

      [h]owever, at the guilty plea and sentencing hearing, [Appellant]
      not only admitted to being impaired with a blood alcohol level of
      .329%, but also admitted that he did cross the lane of traffic and
      strike the motorcycle operated by Bryan Koch and R. Lynn Koch.
      (G.P. Hrg. at p. 7).

Commonwealth’s Brief at 12–13. Thus, Appellant has failed to prove there is

a reasonable probability that, but for counsel’s failure to obtain Bryan Koch’s

medical records, the outcome of the proceeding would have been different.

Pierce, 786 A.2d at 213.




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      In the third question presented, Appellant complains that the trial

court sentenced him to excessive and unreasonable sentences and failed to

consider the guidelines and mitigating factors. Appellant’s Brief at 12. Such

claims   challenge   the   discretionary   aspects   of   his   sentence.   See

Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.

Super. 1995) (stating allegation that court ignored mitigating factors

challenges discretionary aspects of sentencing).      Requests for relief with

respect to the discretionary aspects of sentence are not cognizable in PCRA

proceedings.    42 Pa.C.S. § 9543(a)(2); Commonwealth v. Wrecks, 934

A.2d 1287, 1289 (Pa. Super. 2006). Accordingly, this claim does not afford

Appellant relief.

      Finally, Appellant complains that the trial court imposed an illegal

sentence by ordering restitution because it is not supported by the record.

Appellant’s Brief at 15. Significantly, Appellant also argues that he could not

have made a “knowing, voluntary, and intelligent decision concerning the

plea deal without having any idea that $364,841.24 was a ramification of

accepting a plea.” Id. at 19.

         Although an award of restitution lies within the discretion of
      the [trial] court, it should not be speculative or excessive[,] and
      we must vacate a restitution order which is not supported by the
      record. Mandatory restitution, as part of a defendant’s sentence,
      is authorized by 18 Pa.C.S. § 1106, which states, in relevant
      part:

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       § 1106. Restitution for injuries to person or property

       (a) General rule.—Upon conviction for any crime wherein
       property has been stolen, converted or otherwise unlawfully
       obtained, or its value substantially decreased as a direct
       result of the crime, or wherein the victim suffered personal
       injury directly resulting from the crime, the offender shall be
       sentenced to make restitution in addition to the punishment
       prescribed therefor.

                                    * * *

       (c) Mandatory restitution.—

          (1) The court shall order full restitution:

          (i) Regardless of the current financial resources of
          the defendant, so as to provide the victim with the
          fullest compensation for the loss.

                                       ***

          (2) At the time of sentencing the court shall specify the
          amount and method of restitution. In determining the
          amount and method of restitution, the court:

          (i) Shall consider the extent of injury suffered by the
          victim, the victim's request for restitution ... and
          such other matters as it deems appropriate.

          (ii) May order restitution in a lump sum, by monthly
          installments or according to such other schedule as it
          deems just.

                                       ***

          (4) (i) It shall be the responsibility of the district
          attorneys of the respective counties to make a
          recommendation to the court at or prior to the time
          of sentencing as to the amount of restitution to be
          ordered. This recommendation shall be based upon
          information solicited by the district attorney and
          received from the victim.

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           (ii) Where the district attorney has solicited
           information from the victims as provided in
           subparagraph (i) and has received no response, the
           district attorney shall, based on other available
           information, make a recommendation to the court
           for restitution.

     18 Pa.C.S. § 1106.

            An appeal from an order of restitution based upon a claim
     that it is unsupported by the record challenges the legality,
     rather than the discretionary aspects, of sentencing; as such, it
     is a non-waivable matter. The determination as to whether a
     trial court imposed an illegal sentence is a question of law; an
     appellate court’s standard of review in cases dealing with
     questions of law is plenary.

Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa. Super. 2017) (internal

quotation marks, brackets, and citations omitted).

     The Commonwealth counters that Appellant’s sentence is legal

because “the record establishes a clear nexus between [Appellant’s]

impaired driving and the death and serious injuries resulting therefrom.”

Commonwealth’s Brief at 16. Similarly, the PCRA court opined as follows:

           Petitioner claims that the restitution imposed upon him at
     sentencing is illegal because “it was certainly never determined
     by the sentencing court whether [Appellant] was wholly
     responsible for the accident”.         [Appellant’s] claim is thus
     meritless, because it is belied by the record of the sentencing
     hearing, and [Appellant] is bound by the statements he made
     under oath at that time. [Appellant] admitted at that hearing
     that, at the time of the incident in question, he was driving with
     a blood alcohol level of .329%, crossed the lane of traffic, struck
     Bryan Koch and R. Lynn Koch, and caused the death of R. Lynn
     Koch and serious bodily injury to Bryan Koch. (N.T. 12/17/15 at
     p. 7). Once again, [Appellant] also stated to the court that he
     took “full responsibility for his actions” (N.T. 12/17/15 at p. 40).
     Instead of doubting whether he was “wholly responsible”,

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      [Appellant] at the hearing seemed to admit sole responsibility for
      the incident which led to his charges.

PCRA Court Opinion, 8/8/17, at 11–12. Notably, neither the Commonwealth

nor the PCRA court addressed Appellant’s specific argument regarding the

restitution imposed.

      Upon review, we agree with the PCRA court that Appellant’s own

admissions provide the nexus between Appellant’s conduct and the injuries

sustained by the victims. N.T. 12/17/15, at 7–8, 40. Thus, pursuant to 18

Pa.C.S. § 1106, restitution was mandatory.       Accord Commonwealth v.

Harriott, 919 A.2d 234, 238 (Pa. Super. 2007) (“Due to the language

‘directly resulting from the crime,’ restitution is proper only if there is a

direct causal connection between the crime and the loss.”). “However, even

where the injury to the victim may have directly resulted from a defendant’s

criminal acts, it is still necessary that the amount of the full restitution be

determined under the adversarial system with considerations of due

process.” Rotola, 173 A.3d at 735 (quoting Commonwealth v. Atanasio,

997 A.2d 1181, 1183 (Pa. Super. 2010)) (internal quotation marks omitted).

Thus, our Supreme Court has specifically required the trial court to ensure

“that the defendant is aware of permissible ranges of sentences and/or fines

for offenses charged[.]” Id. at 836 n.4 (citing Pa.R.Crim. 590; emphasis in

original).

      Here, Appellant entered into an open guilty plea. Written Guilty Plea

Colloquy, 12/17/15.    However, the written plea only informed Appellant

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about the maximum penalty, offense grading, fines, and the sentencing

guideline ranges for the offenses charged. Id. The written colloquy did not

provide that mandatory restitution would be part of Appellant’s sentence.

Furthermore, although an oral plea colloquy was conducted, restitution was

not mentioned until after the trial court had accepted the plea and just

before sentencing, at which time the Commonwealth requested restitution of

$1.00 and indicated its intention to file a motion to amend restitution. N.T.,

12/17/15, at 3–8, 41–42.

     Under such circumstances, our decision in Rotola is dispositive:

            [W]here there is nothing in the record indicating that
     [appellant] was apprised of the fact that mandatory restitution
     would be imposed as part of his direct, criminal sentence, and
     where there is no support for the amount ordered, we question
     the voluntary, knowing and intelligent nature of [his] plea. See
     [Commonwealth v. Daniels, 656 A.2d 539 (Pa. Super. 1995)]
     (where ADA did not state on record that plea bargain involved
     $5,000 fine and where there was nothing in record showing
     defendant was informed that mandatory minimum sentencing
     provision required both imprisonment and fine, judgment of
     sentence vacated because court was not justified in accepting
     defendant's guilty plea). We remind the trial court that while full
     restitution under section 1106(c) is mandatory, it is still
     necessary that defendants agree to restitution, as part of the
     plea bargaining process, openly on the record. Commonwealth
     v. Anderson, 995 A.2d 1184 (Pa. Super. 2010) (plea agreement
     remains contractual in nature; promises constituting plea
     bargain must be based upon totality of surrounding
     circumstances); [Commonwealth v. Kroh, 654 A.2d 1168,
     1172 (Pa. Super. 1995)].

Rotola, 173 A.3d at 83–837.

     We recognize that, in cases where the trial court failed to specify the

exact amount of restitution, delegated the duties to set restitution to an

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agency, or left the amount of restitution open to further review and

adjustment, a reviewing court would simply vacate the restitution portion of

a defendant’s sentence and remand for resentencing. See Commonwealth

v. Gentry, 101 A.3d 813 (Pa. Super. 2014); Commonwealth v. Mariani,

869 A.2d 484 (Pa. Super. 2005); Commonwealth v. Deshong, 850 A.2d

712 (Pa. Super. 2004). Here, however, as in Rotola, “the very integrity of

Appellant’s plea is undermined where he was never informed that restitution

was mandated upon his . . . conviction.”       Rotola, 173 A.3d at 837.

Accordingly, we are constrained to reverse the PCRA order, vacate

Appellant’s judgment of sentence, and remand for trial. Rotola, 173 A.3d at

837.

       PCRA order reversed.      Judgment of sentence vacated.         Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:2/1/18




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