J-S61017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RICHARD ADAM HARTLEB

                            Appellant               No. 1823 WDA 2015


                  Appeal from the PCRA Order October 19, 2015
                   In the Court of Common Pleas of Erie County
    Criminal Division at No(s): CP-25-CR-0000856-2013 CP-25-CR-0001217-
                                      2013


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

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 10, 2017

        Richard Adam Hartleb appeals from the trial court’s order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA). 1     Upon

review, we affirm and grant counsel’s petition to withdraw pursuant to

Turner/Finley.2

        On September 23, 2013, a jury convicted Hartleb of four counts of

terroristic threats,3 four counts of simple assault,4 one count of possessing

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
    18 Pa.C.S. § 2706.
4
    18 Pa.C.S. § 2701.
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an instrument of a crime,5 and one count of a person carrying a firearm

without a license.6        These convictions stemmed from an incident that

occurred on February 8, 2013, in which Hartleb pointed a handgun at several

individuals at Haggerty’s Bar in Erie.         On November 5, 2013, Hartleb pled

guilty to one count of recklessly endangering another person7 and another

count of a person carrying a firearm without a license, following an unrelated

incident on January 13, 2013, in which Hartleb fired a handgun toward a

vehicle on the 1100 block of Wallace Street in Erie.

        On November 14, 2013, the Honorable John Garhart sentenced Hartleb

to an aggregate term of 6 to 14 years’ incarceration.            On November 22,

2013, Hartleb filed a motion to modify and reduce sentence, which Judge

Garhart denied on December 6, 2013.              Counsel filed a statement of intent

to file an Anders/McClendon8 brief in lieu of a Pa.R.A.P. 1925(b)

statement.     On August 22, 2014, this Court granted counsel’s petition to

withdraw and affirmed Hartleb’s judgment of sentence. Commonwealth v.

Hartleb, No. 1966 WDA 2013 (Pa. Super. filed Aug. 22, 2014).



____________________________________________


5
    18 Pa.C.S. § 907.
6
    18 Pa.C.S. § 6106.
7
    18 Pa.C.S. § 2705.
8
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).



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       On May 16, 2015, Hartleb filed a pro se “Motion to Correct Formal

Error,” arguing that his sentence was illegal.          The trial court treated

Hartleb’s motion as a PCRA petition and the trial court appointed PCRA

counsel. Hartleb’s PCRA counsel subsequently filed a motion to supplement

Hartleb’s PCRA petition, suggesting that Hartleb’s claim that his prior record

score was incorrectly calculated lacked legal merit.9            PCRA counsel

apparently attempted to withdraw from the matter; however, we found that

counsel did not satisfy all of the demands of Turner/Finley. Accordingly,

we ordered counsel to either comply with the mandates of Turner/Finley or

file an advocate’s brief. See Commonwealth v. Hartleb, No. 1823 WDA

2015 (Pa. Super. filed Nov. 15, 2016).           PCRA counsel has now filed an

advocate’s brief.

       On appeal, Hartleb raises the issues of “[w]hether the lower court

erred in denying PCRA relief based on the finding of waiver and in otherwise

failing to find that the offense gravity score calculated and applied as to the

instant sentence was incorrect[.]” Brief of Appellant, at 2.

       The PCRA court found that because the issue of whether the correct

offense gravity score was used is a challenge to the discretionary aspects of

sentence, Hartleb waived this claim by “fail[ing] to preserve [it] following


____________________________________________


9
  Hartleb also argued that the offense gravity score for his conviction of one
count of a person carrying a firearm without a license should have been
calculated as a 5 rather than a 7.



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sentence or on direct review[.]”    Notice of Intent to Dismiss Without a

Hearing Pursuant to Pa.R.Crim.P. 907, 9/23/15, at 3.

     We agree that Hartleb’s claim entitles him to no relief under the PCRA.

See Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)

(“Challenges to the discretionary aspects of sentencing are not cognizable

under the PCRA.”). Accordingly, the court did not err in dismissing Hartleb’s

PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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