J-S93037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DENNIS JOHN VELEZ,

                            Appellant                 No. 817 EDA 2016


                 Appeal from the PCRA Order February 24, 2016
                 in the Court of Common Pleas of Lehigh County
                  Criminal Division at No.: CP-39-0004257-2010


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 31, 2017

        Appellant, Dennis John Velez, appeals from the order denying his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        This case returns to us after remand. The prior panel of this Court set

forth the relevant background, as follows:

                    Appellant and Christian Bueno set out in the
              early morning hours of September 8, 2007 intending
              to find a victim to rob. A third person, Amarilys
              Soto[,] drove their vehicle. The pair came upon
              Debra Robertson who was asleep in her van which
              was parked in the parking lot of Diamondz nightclub
              in Bethlehem. During the course of the robbery,
              Bueno shot and killed Robertson. Ultimately, when
              [A]ppellant became a suspect, he cooperated with
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*
    Retired Senior Judge assigned to the Superior Court.
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              police, and helped in the prosecution of Bueno. Soto
              was not charged.

        (Commonwealth v. Velez, No. 3104 EDA 2011, unpublished
        memorandum at *1 (Pa. Super. filed Sept. 17, 2012)).

              On September 15, 2011, Appellant pleaded guilty to
        [murder of the third degree and conspiracy to commit
        robbery].[1]    The only condition of Appellant’s open plea
        agreement was that the trial court would run the sentences it
        imposed concurrently.     In exchange for the plea, Appellant
        agreed to testify truthfully at Bueno’s trial. On October 21,
        2011, the trial court sentenced Appellant to an aggregate term
        of not less than twenty nor more than forty years’ incarceration.
        On October 31, 2011, Appellant filed a timely post-sentence
        motion seeking reconsideration of his sentence, claiming that it
        was excessive in light of his cooperation with police. The trial
        court denied the post-sentence motion on November 2, 2011.

               On November 15, 2011, Appellant filed a timely direct
        appeal raising two issues challenging the discretionary aspects of
        his sentence. Specifically, he alleged that his sentence was the
        result of trial court bias, and that his sentence was excessive
        considering his cooperation with police. (See Velez, supra at
        *4). On September 17, 2012, this Court affirmed Appellant’s
        judgment of sentence, concluding that he waived the issue of
        trial court bias by failing to raise it at sentencing or in his post-
        sentence motion, and that the issue challenging his sentence as
        excessive in light of his cooperation with police failed to raise a
        substantial question. (See id. at *4). Appellant did not file a
        petition for allowance of appeal with our Supreme Court.

               On September 13, 2013, Appellant filed a timely pro se
        petition pursuant to the [PCRA]. The PCRA court appointed
        counsel who filed an amended petition on October 16, 2013. In
        the petition, Appellant asserted that his plea was not knowing,
        intelligent, or voluntary.        (See Amended PCRA Petition,
        10/16/14, at unnumbered page 1). Appellant also claimed that
        trial counsel was ineffective[,] inter alia[,] for failing to preserve
        the issue of trial court bias in imposing the sentence, resulting in
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1
    18 Pa.C.S.A. §§ 2502(c) and 903(c), respectively.



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     waiver of that issue on direct appeal. (See id. at unnumbered
     page 2). Appellant requested that the court grant him the right
     to withdraw his guilty plea, or alternatively, grant him
     permission to file a post-sentence motion nunc pro tunc to raise
     the issue of trial court bias at sentencing. (See id.).

            On January 29, 2014, the PCRA court held a hearing on
     the amended PCRA petition, at which it heard no argument or
     testimony regarding Appellant’s PCRA claims.        Instead, the
     Commonwealth agreed with Appellant’s counsel to ask the court
     to allow Appellant to file a post-sentence motion to reconsider
     sentence nunc pro tunc, in exchange for Appellant’s agreement
     to withdraw his remaining PCRA claims. (See N.T. PCRA
     Proceeding, 1/29/14, at 2-3). The PCRA court agreed. On
     January 31, 2014, pursuant to the agreement of counsel, as
     expressly agreed to by Appellant, the PCRA court entered an
     order directing Appellant to file a post-sentence motion nunc pro
     tunc within ten days of January 29th, and confirming his
     withdrawal of all other PCRA issues. (See Order, 1/31/14).

            On February 4, 2014, Appellant filed a timely post-
     sentence motion nunc pro tunc, which the trial court denied by
     order entered February 18, 2014. In a footnote to the February
     18th order, the court concluded that Appellant’s claim that it was
     biased or possessed ill will towards him at sentencing is
     “baseless.” (Order, 2/18/14, at 1 n.1). On March 6, 2014,
     Appellant filed his notice of appeal, purporting to appeal from the
     trial court’s February 18, 2014 order denying his nunc pro tunc
     post-sentence motion. The trial court directed Appellant to file a
     concise statement of errors complained of on appeal and he
     timely complied on March 27, 2014. See Pa.R.A.P. 1925(b).
     The court filed a Rule 1925(a) opinion on March 31, 2014, in
     which it relied on and incorporated its February 18, 2014 order.
     See Pa.R.A.P. 1925(a).

(Commonwealth v. Velez, No. 799 EDA 2014, unpublished memorandum

at *2-5 (Pa. Super. filed Feb. 24, 2015) (footnotes omitted)).

     On February 24, 2015, this Court concluded that the PCRA court erred

in reinstating Appellant’s right to file a post-sentence motion nunc pro tunc

where Appellant had not been denied his right to file a direct appeal in its

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entirety. (See id. at *8). We vacated and remanded on the basis that “the

PCRA court should have considered the merits of Appellant’s ineffective

assistance of counsel claim applying the traditional three-pronged test

before granting or denying PCRA relief.” (Id. at *9).

       On February 23, 2016, the PCRA court held a hearing on the merits of

Appellant’s PCRA petition, which it denied on February 24, 2016. Appellant

timely appealed.2

       Appellant raises one question for this Court’s review:

             Did the [PCRA] court err in finding that counsel was not
       ineffective for the following reasons:       trial counsel was
       ineffective by failing to preserve the issue of whether the
       sentence imposed was a product of ill-will or bias by failing to
       raise the issue as the time of sentencing or in post[-] sentence
       motions?

(Appellant’s Brief, at 4).

       Our standard of review for an order denying PCRA relief is well-settled:

              This Court analyzes PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record and we do not disturb a PCRA court’s ruling if it is
       supported by evidence of record and is free of legal error.
       Similarly, we grant great deference to the factual findings of the
       PCRA court and will not disturb those findings unless they have
       no support in the record. However, we afford no such deference
       to its legal conclusions. Where the petitioner raises questions of

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2
  On March 28, 2016, Appellant filed a timely statement of errors complained
of on appeal pursuant to the PCRA court’s order; the court filed an opinion
the same day, in which it relied on its February 24, 2016 opinion. See
Pa.R.A.P. 1925.



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      law, our standard of review is de novo and our scope of review is
      plenary. . . .

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations,

quotation marks, and brackets omitted).

      In this case, Appellant argues trial counsel was ineffective for failing to

challenge,   either   at   sentencing   or    in   a   post-sentence   motion,   the

discretionary aspects of his sentence, on the basis of the trial court’s bias or

ill-will. (See Appellant’s Brief, at 9-10). In support of this claim, Appellant

maintains the trial court, which initially appeared “sympathetic” to him,

ultimately sentenced him to the statutory maximum because it was

“annoyed” that he complained about the Commonwealth not charging Ms.

Soto in the incident. (Id.). This issue lacks merit.

                    [I]n order to obtain relief based on [an
             ineffective assistance of counsel (“IAC”) ] claim, a
             petitioner must establish: (1) the underlying claim
             has arguable merit; (2) no reasonable basis existed
             for counsel’s actions or failure to act; and (3)
             petitioner suffered prejudice as a result of counsel’s
             error such that there is a reasonable probability that
             the result of the proceeding would have been
             different absent such error.

             A failure to satisfy any prong of the test for ineffectiveness
      will require rejection of the claim. Trial counsel is presumed to
      be effective, and a PCRA petitioner bears the burden of pleading
      and proving each of the three factors by a preponderance of the
      evidence.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015), appeal

denied, 141 A.3d 479 (Pa. 2016) (citations omitted).

      We also observe that:

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              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015)

(citation omitted).

      In the present case, the PCRA court observed:

             [Trial counsel] negotiated a plea arrangement with the
      Commonwealth that entailed [Appellant] entering [an open] plea
      of guilty to the charge[s] of [c]riminal [h]omicide-[m]urder of
      the [t]hird [d]egree and [c]onspiracy to [c]ommit [r]obbery . . .
      . In addition to not pursuing the [f]irst [d]egree [m]urder
      charge, the Commonwealth agreed not to pursue the other
      counts of the [c]riminal [i]nformation. . . . [P]rior to sentencing,
      [trial counsel] reviewed the [p]re-[s]entence [i]nvestigation
      [(PSI)] [r]eport with [Appellant].       [Counsel] explained to
      [Appellant] the sentencing guidelines, his maximum exposure,
      and     the   [p]re–[s]entence   [i]nvestigator’s     recommended
      sentence of not less than eighteen (18) years nor more than
      forty (40) years.

            On October 21, 2011, at the time of sentencing,
      [Appellant] testified on his own behalf.        (N.T. Sentencing,
      10/21/11, at 7-14). He expressed his belief that eighteen (18)
      to forty (40) years or twenty (20) to forty (40) years was too
      severe of a punishment given his involvement and his
      cooperation. (See id. at 13-14). Detective Joseph Vazquez and
      the attorney for the Commonwealth spoke on [Appellant’s]
      behalf. (See id. at 15-23). This [c]ourt listened carefully to the
      testimony of [Appellant], the attorney for the Commonwealth,
      and Detective Vazquez. Indeed, this [c]ourt considered all the
      required statutory factors in sentencing [Appellant]. In imposing
      [Appellant’s] sentence, this [c]ourt considered the “protection of
      the public, the gravity of the offense as it relates to the impact
      on the victim and the community, [Appellant’s] rehabilitative
      needs, and the sentencing guidelines.” 42 Pa.C.S.A. § 9721(b).

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             Also, prior to sentencing, this [c]ourt carefully reviewed
      the [PSI] prepared on October 14, 2011. The [c]ourt was aware
      of all of the information contained therein, including the facts
      from which the offenses arose. Also, this [c]ourt did not fail to
      consider mitigating factors. [Appellant] was sentenced under
      the terms of his negotiated plea agreement and he received the
      benefit of the bargain, albeit higher than he would have liked.
      [Appellant] was sentenced to an aggregate term of
      imprisonment of not less than twenty (20) years nor more than
      forty (40) years in a state correctional institution. This sentence
      was within the standard range of the sentencing guidelines and
      conformed with his plea agreement. No ill-will or bias was
      factored into this sentence. Indeed, this [c]ourt bore no ill-will
      or bias against [Appellant] at the time of sentencing and
      continues to bear no ill-will or bias against [him] to date.

(PCRA Court Opinion, 2/24/16, at 5-7) (case citations omitted; some record

citation formatting provided).

      Also, based on our independent review, we observe that there is

nothing on the record that evidences any bias or ill will by the court. For

example, at sentencing, the trial court allowed Appellant a full opportunity to

speak on his own behalf before it heard from Detective Vasquez and the

Commonwealth’s counsel.      (See N.T. Sentencing, 10/21/11, at 7-23).      At

the conclusion of argument, the trial court began explaining the reasons for

its sentence, and observed, “the fair and equitable sentence, whether you

like it or not, is life[] . . . because you involved yourself in a felony that

caused the death of [the victim]. So that is felony murder.” (Id. at 23).

However, the court also considered Appellant’s expressions of remorse,

cooperation in the investigation, and the PSI sentencing recommendation,

but pointed out that it had to balance these with “what [it thought was] the

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right thing” in this “heartbreaking” case.     (Id. at 24, 25; see id. at 23).

Thereafter,   Appellant   interrupted   the   court,   which   allowed   him   the

opportunity to speak again, at length, and permitted him to argue about the

Commonwealth’s choice not to charge Soto. (See id. at 25-27). The court

then imposed a term of incarceration that contained concurrent guideline

sentences pursuant to the terms of Appellant’s open plea agreement. (See

id. at 3-4, 22-23, 27-28).

      Hence, we conclude that there is no merit to Appellant’s claim that the

trial court abused its discretion by exercising bias or ill will in sentencing

him. See Perry, supra at 1289. Therefore, because “counsel will not be

deemed ineffective for failing to raise a meritless claim[,]” we conclude that

the PCRA court properly found that trial counsel was not ineffective.

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006) (citation

omitted); see also Perry, supra at 1289.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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