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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

                 v.


    DANIEL WAYNE MCCORMICK

                       Appellant            :   No. 1717 MDA 2018

           Appeal from the PCRA Order Entered September 10, 2018
               In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000831-2015


BEFORE:      OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                  FILED JULY 30, 2019

        Daniel Wayne McCormick appeals from the order entered in the Court

of Common Pleas of Franklin County on September 10, 2018, denying him

relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.   §   9541 et seq.' In this timely appeal, McCormick claims the PCRA

court erred in determining trial counsel had not been ineffective for failing to

object to the initial date of criminal activity to which he pled guilty. After   a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.



1 The parties and the PCRA court all agree the PCRA petition was timely filed.
Our review of the certified record confirms this. Accordingly, we find no need
to recite the well-known statutory requirements for the filing of a timely PCRA
petition. Suffice it to say that the petition was filed well within the one year
from the date conviction became final time limit. See 42 Pa.C.S. § 9545.
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        On April 24, 2017, McCormick pled                guilty to       a   single count of corrupt

organizations,      a   first -degree felony, and theft by deception,                a   third-degree

felony.2 McCormick and others stole money from                       a   charity and took part     in

fraudulent returns to            a   store, using the money obtained to purchase heroin.

He received a sentence of two to five                 years' incarceration and was deemed

boot camp eligible. McCormick claims the dates of criminal activity underlying

his charges were incorrect and this mistake led to an additional sentence

imposed on him for           a   parole violation. McCormick argues his trial counsel was

ineffective for failing to correct the starting date of his criminal activity from

August 1, 2013 to June 12, 2014.

        Following       a   hearing on McCormick's PCRA petition, the PCRA court

determined: (1) he had pled guilty knowingly with the date of initial criminal

activity being August 1, 2013; (2) the Commonwealth asserted the criminal

activity had begun well prior to June, 12, 2014, and there was no indication

the Commonwealth would have agreed to amend the bills of information; and

(3) counsel had         a   reasonable reason for not objecting to the August 1, 2013,

initial crime date. Accordingly, the PCRA court denied McCormick relief.

        Our standard of review for the denial of PCRA relief is well settled.

        Upon reviewing an order in  a PCRA matter, we must determine
        whether the findings of the PCRA court are supported by the
        record and whether the court's legal conclusions are free from
        error. Commonwealth v. Hannibal, 638 Pa. 336, 156 A.3d 197,
        206 (2016). The findings of the PCRA court and the evidence of


2   18 Pa.C.S. §§ 911(b)(1) and 3922(a)(1), respectively.


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        record are viewed in a light most favorable to the prevailing party.
        Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
        (2012). The PCRA court's credibility determinations, when
        supported by the record, are binding; however, this court applies
        a de novo standard of review to the PCRA court's legal conclusions.
        Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 603 (2013).
        We must keep in mind that the petitioner has the burden of
        persuading this Court that the PCRA court erred and that such
        error requires relief. [Commonwealth v.] Wholaver, 177 A.3d
         [136] at 144-45 [(Pa. 2018)]. Finally, this Court may affirm a valid
        judgment or order for any reason appearing of record. Id. at 145.

Commonwealth v. Montalvo, 205 A.3d 274, 286                   (Pa. 2019).

        Further, regarding      a   claim of ineffective assistance of counsel:

        It        established that counsel is presumed to have rendered
             is well
        effective assistance. Commonwealth v. Sepulveda, 618 Pa.
        262, 55 A.3d 1108, 1117 (2012). To obtain relief on a claim
        challenging counsel's performance, a PCRA petitioner must satisfy
        the performance and prejudice test announced in Strickland v.
        Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
        (1984). In Pennsylvania, we apply the Strickland test by
        examining whether: (1) the underlying claim has arguable merit;
        (2) counsel lacked a reasonable basis for his actions or failure to
        act; and (3) the petitioner was prejudiced by counsel's deficient
        performance such that there is a reasonable probability that the
        result of the proceeding would have been different absent
        counsel's error or omission. Commonwealth v. Pierce, 515 Pa.
        153, 527 A.2d 973, 975 (1987).

Id.
        Here, McCormick pled guilty to Corrupt Organizations, 18 Pa.C.S.          §

911(b)(1), with        a   range of dates from August 1, 2013, to August 30, 2014.

However, now,

        [McCormick] contends that he did not participate in any criminal
        behavior related to this charge prior to June 12, 2014 and that
        since his attorney at the time allowed for the mistaken admission
        during the plea, [McCormick] has a valid claim of ineffectiveness
        of counsel.    [McCormick] makes this contention because the

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         inclusion of time prior to June 12, 2014 made him vulnerable to
         an increased sentence because the period of criminal behavior
         alleged in the information included time that [McCormick] was still
         on parole for a previous offense.

McCormick's Brief at 7.3

        This claim fails for   a   number of reasons. First, the PCRA court accurately

noted:

        The information for the charge of Corrupt Organizations that
        [McCormick] pled guilty [to] contained the dates of August 1,
        2013 through August 30, 2014. The negotiated plea agreement
        contained the nolle prosse of several charges in return for
        [McCormick's] guilty plea on one charge of Corrupt Organizations
        as well as a classification by the Court of "boot camp eligible" for
        consideration by the Pennsylvania Department of Corrections.

        There is no evidence to suggest that the Commonwealth would
        have been amenable to a modification of the period of time
        contained in the information and the Commonwealth's Answer to
        this motion indicates that the offense began prior to June 12,
        2014. The Court finds that there was a reasonable basis for the
        attorney not to object to the dates of the charge of Corrupt
        Organizations indicated in the information and [McCormick] has
        offered no evidence to indicate that the Commonwealth would
        have been amenable to amending the information because the
        Commonwealth had information that the offense began prior to
        June 12, 2014.

PCRA Court Opinion,      9/10/2018, at 8-9.
        Trial counsel cannot be ineffective for failing to take    a   futile action. As

McCormick presented no evidence the information could have been amended,

he cannot now prevail.




3 Because McCormick failed to insure the notes of testimony from his guilty
plea hearing were included in the certified record, we could have found this
claim waived. However, given the nature of this claim, we believe we can
proceed.

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        Further, our review of the bills of information reveal that while

McCormick is correct his criminal activity associated with his fraudulent

dealing at Walmart did not begin until June 12, 2014, the information clearly

listed other criminal activity relevant to the charge of Corrupt Organizations,

such as ATM fraud, that took place well before June, 2014. Accordingly, the

PCRA    court did not err in concluding there was sufficient evidence to support

the guilty plea as charged.

        Finally, at the PCRA hearing, plea counsel testified McCormick raised no

issues with him regarding the accuracy of the dates listed in the bills of

information. See N.T. PCRA Hearing, 5/10/2018, at 22-23.

        McCormick also argued that Commonwealth v. Shannon, 368 A.2d

742 (Pa. Super. 1976), gives the Courts the authority to correct the

typographical error underlying the mistaken dates of his criminal activity. The

PCRA    court has correctly pointed out that McCormick has presented no

evidence of   a   typographical error. Rather, all the information presented by

the Commonwealth indicated McCormick engaged in criminal activity for the

entire period of time as charged. Accordingly, McCormick       is   not entitled to

have his charges amended. Our review of the certified record leads us to find

the PCRA court did not err in this determination.

        Order affirmed.




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Judgment Entered.




J    seph D. Seletyn,
Prothonotary
Date: 7/30/2019




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