J-S18014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ISAIAH BARKER

                            Appellant                 No. 1707 EDA 2016


                   Appeal from the PCRA Order May 3, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003844-2012


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 26, 2017

        Appellant, Isaiah Barker, appeals from the order entered1 in the Lehigh

County Court of Common Pleas, denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Barker purports to appeal from the order entered May 2, 2016. See Notice
of Appeal, filed 5/25/16. The order, however, was not entered on May 2. “In
a criminal case, the date of entry of an order is the date the clerk of courts
enters the order on the docket, furnishes a copy of the order to the parties,
and records the time and manner of notice on the docket.” Commonwealth
v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (citations omitted). See
also Pa.R.Crim.P. 114 (requiring the clerk of the court to immediately
docket an order and to note on the docket that a copy of the order has been
furnished to the parties); Pa.R.A.P. 108(a) (specifying that the date of entry
of an order shall be the day the clerk of the court mails or delivers a copy of
the order to the parties); Pa.R.A.P. 301(a)(1), (c). A review of the docket
entries reveals that date, in this case, is May 3, 2016. We have corrected the
appeals statement of the caption accordingly.
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       In July 2012, Barker, along with three co-defendants, committed two

robberies of commercial establishments within Lehigh County. 2 As a result,

Barker was arrested and charged with two counts each of robbery, theft,

receiving stolen property, conspiracy, and simple assault, as well as one

count of aggravated assault.3

       On December 6, 2012, Barker entered a guilty plea to two counts of

robbery, in exchange for which the Commonwealth agreed to “bind the [trial

court] to a minimum sentence that would not exceed the standard range of

the sentencing guidelines” and “not pursue the mandatories or other counts

in the information.” PCRA Court Opinion, 5/2/16, at 1.4 Thereafter, on

February 15, 2013, the trial court sentenced Barker to two consecutive

terms of four and one-half to ten years’ imprisonment, for an aggregate

sentence of nine to twenty years’ imprisonment.

       Barker filed a timely appeal. After this Court affirmed his judgment of

sentence, see Commonwealth v. Barker, No. 949 EDA 2013 (Pa. Super.,

filed May, 9 2014) (unpublished memorandum) (finding no error in the

discretionary aspects of the trial court’s sentence), Barker filed a timely pro
____________________________________________


2
  Contemporaneously, the same individuals committed three robberies of
commercial establishments in neighboring Northampton County.
3
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 903, 2701(a)(1) and
2701(a)(4), respectively.
4
 We note that the PCRA Court Opinion was dated April 29, 2016, but was
not filed until May 2, 2016.



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se PCRA petition, challenging guilty plea counsel’s effectiveness at his

sentencing. Barker then retained private counsel who filed an amended

petition, whose claims mirrored the pro se petition. The PCRA court held

evidentiary hearings on Barker’s petition on May 26, 2015, and March 23,

2016. At the hearings, Barker presented the testimony of his guilty plea

counsel, Matthew Potts, Esquire, his mother, and Frank M. Dattilio, Ph.D.

(“Dr. Dattilio”). Following the evidentiary hearing, the PCRA court denied

Barker’s petition and this timely appeal followed.

      On appeal, Barker raises the following issues for review:

      I.    Whether the PCRA Court erred in finding that trial counsel
            was not ineffective for failing to request or obtain drug or
            alcohol or mental health evaluations, and for failing to
            explore other mitigating factors at sentencing[.]

      II.   Whether the PCRA court erred in failing to find that, under
            Alleyne, [Appellant] is not subject to any mandatory
            minimum, and therefore the basis for entering the plea
            agreement is invalid[.]

Appellant’s Brief, at 2.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted).”

      Barker first contends that the PCRA court erred in concluding that trial

counsel was effective at his sentencing. See Appellant’s Brief, at 2, 12-22.




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

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

One such error is the “[i]neffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      We presume that counsel is effective and a PCRA petitioner has the

burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d 699,

708 (Pa. Super. 2004). To be entitled to relief on an ineffectiveness claim, it

is well settled that a PCRA petitioner must establish: (1) the underlying

claim has arguable merit; (2) no reasonable basis existed for counsel’s

action or failure to act; and (3) he suffered prejudice as a result of counsel’s

failure, with prejudice measured by whether there is a reasonable probability

the   result   of   the   proceeding     would   have   been   different.   See

Commonwealth v. Chimel, 30 A.3d 1111, 1127 (Pa. 2011). Failure to

satisfy any one prong of this test causes the entire claim to fail. See

Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa. Super. 2009).

      Barker focuses his ineffective assistance claim on his allegation that

Attorney Potts unreasonably failed to request or obtain drug or alcohol or

mental health evaluations prior to his sentencing. See Appellant’s Brief, at 2,

12-22. Barker contends that Attorney Potts did not have a reasonable basis


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for failing to obtain these evaluations because he knew of Barker’s history

with ADHD and substance abuse. See id., at 14. Further, Barker contends

that Attorney Potts’s failure to obtain these evaluations resulted in prejudice.

See id.

      “To sustain a claim of ineffectiveness, 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)

(citation and internal quotation marks omitted). In finding that Attorney

Potts had a reasonable basis for declining to obtain mental health and/or

drug and alcohol evaluations, the trial court found as follows:

      At the time of sentencing on February 15, 2013, Attorney Potts
      presented witnesses on [Barker’s] behalf. Specifically, [Barker’s]
      mother and stepfather testified, as well as the mother of his
      child. [Barker] spoke on his own behalf. However, Attorney Potts
      did not have [Barker] evaluated prior to sentencing with regard
      to his mental health status or his use of controlled substances,
      and consequently did not present any professional testimony
      concerning same. Attorney Potts was aware that [Barker]
      suffered from ADHD and his abuse of controlled substances, but
      he also found [Barker] to be quite an impressive young man.
      Attorney Potts believed that obtaining a mental health and/or
      drug and alcohol evaluation was a “double edged sword.” He
      believed that it would detract from his client’s case. Rather,
      Attorney Potts’[s] strategic plan at the time of sentencing was to
      focus on the positive aspects of [Barker] and present him as a
      remorseful individual who did not make excuses for his actions.[]
      Attorney Potts wanted to impress upon the [trial c]ourt that
      [Barker] took full responsibility, and he subsequently has taken
      affirmative acts to change his life while incarcerated. This
      strategy was discussed with [Barker] prior to the sentencing
      hearing. [The PCRA c]ourt notes that in regard to ineffectiveness
      of counsel’s acts or omissions, defense counsel is afforded broad
      discretion to determine tactics and strategies. Indeed, counsel’s
      strategic decisions, such as those challenged here, can only be

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      deemed ineffective if [Barker] proved that in light of all the
      alternatives available to counsel, the strategy actually employed
      was so unreasonable that no competent lawyer would have
      chosen it. Such is not the situation with the case at bar. [The
      PCRA c]ourt finds that Attorney Potts’[s] strategy at the time of
      sentencing was absolutely reasonable in light of the
      circumstances.

PCRA Court Opinion, 5/2/16, at 4-5 (internal citation omitted).

      We agree with the PCRA court’s rationale. Attorney Potts’s strategy

was eminently reasonable. Accordingly, we find Barker’s first issue fails.

      In his final issue on appeal, Barker argues that his guilty plea should

be invalidated as his plea was premised on the avoidance of mandatory

minimum sentences. See Appellant’s Brief, at 2, 22-26. Barker contends

that because mandatory minimum sentences in Pennsylvania were found

unconstitutional under Alleyne v. United States, 133 S.Ct. 2151 (2013),

and its progeny, the basis for his plea is no longer valid. See id. Therefore

Barker contends that he should be able to withdraw his guilty plea through

the PCRA because “Alleyne based claims are not waivable.” Id., at 26.

However, in the event that we find that Barker did not properly preserve this

claim, Barker contends that the waiver was a result of Attorney Potts’s

ineffectiveness. See id.

      In dismissing this claim, the PCRA court cogently reasoned that

“[w]hile it is true that at the time of the guilty plea hearing, the

Commonwealth agreed not to pursue any mandatory minimum sentences,

this Court concludes that a subsequent change in case law does not render


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the Defendant's plea invalid.” PCRA Court Opinion, 5/2/16, at 7 (citing,

among others, Brady v. United States, 397 U.S. 742 (1970)). In Brady,

the Court explained that

      judgments may be made that in the light of later events seem
      improvident, although they were perfectly sensible at the time.
      The rule that a plea must be intelligently made to be valid does
      not require that a plea be vulnerable to later attack if the
      defendant did not correctly assess every relevant factor entering
      into his decision. A defendant is not entitled to withdraw his plea
      merely because he discovers long after the plea has been
      accepted that his calculus misapprehended the quality of the
      State’s case or the likely penalties attached to alternative
      courses of action. More particularly, absent misrepresentation or
      other impermissible conduct by state agents, a voluntary plea of
      guilty intelligently made in the light of the then applicable law
      does not become vulnerable because later judicial decisions
      indicate that the plea rested on a faulty premise.

Id., at 756-757 (internal citation omitted; emphasis added). Indeed, the

“possibility of a favorable change in the law occurring after a plea agreement

is merely one of the risks that accompanies a guilty plea.” United States v.

Lockett, 406 F.3d 207, 214 (3d Cir. 2005). And by no means, as Brady

holds, does it render a plea intelligently and voluntarily entered subject to

later attack merely on this basis.

      To the extent that Barker contends Attorney Potts was ineffective for

failing to predict Alleyne and its ramifications, we reject that contention.

Counsel will not be deemed ineffective for failing to anticipate changes in the

law. See Commonwealth v. Bennett, 57 A.3d 1185, 1201 (Pa. 2012)

(recognizing that “counsel will not be faulted for failing to predict change in

the law”); Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009) (“The law

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is clear that counsel cannot be held ineffective for failing to anticipate a

change in the law.”) Thus, we find Barker’s second issue on appeal

meritless.

      Order affirmed.

      Judge Solano joins the memorandum.

      Justice Fitzgerald concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2017




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