J-S10006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS MARTINEZ,

                            Appellant                No. 3424 EDA 2013


                 Appeal from the PCRA Order November 5, 2013
             in the Court of Common Pleas of Northampton County
               Criminal Division at Nos.: CP-48-CR-0003442-2010


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 17, 2015

        Appellant, Luis Martinez, appeals from the order1 dismissing his

counseled petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A previous panel of this Court summarized the factual and procedural

history of this case as follows:

              On June 20, 2010, after breaking into their victims’ home,
        Appellant and his partner kidnapped the victims, threatened and
        tortured them, and then left them tied up in their home after
        making off with over $60,000 in valuables. The police later
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The order appealed from was dated November 1, 2013, but was not
entered on the docket until November 5, 2013. We have amended the
caption accordingly.
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     arrested both men. After the Commonwealth began to introduce
     evidence at the July 12, 2011 trial, Appellant opted to plead
     guilty to the following charges: Robbery, Aggravated Assault,
     Burglary, Recklessly Endangering Another Person, Terroristic
     Threats, Unlawful Restraint, Criminal Trespass, Theft by Unlawful
     Taking, Receiving Stolen Property, Possession of a Weapon,
     Prohibitive Offensive Weapons, Conspiracy to Commit Robbery,
     Conspiracy to Commit Theft by Unlawful Taking, Conspiracy to
     Commit Kidnapping, Conspiracy to Commit Burglary, Conspiracy
     to Commit Criminal Trespass, Conspiracy to Commit Unlawful
     Restraint, Access Device Fraud, and Kidnapping.

            Upon a lengthy and detailed guilty plea colloquy, the lower
     court found Appellant guilty of the crimes charged. In addition
     to his guilty plea, Appellant also waived his rights to a PSI
     (Presentence Investigation Report) and requested immediate
     sentencing. Relevant portions of this part of the proceeding are
     as follows:

                 THE COURT: Mr. [Alexander] Karam [defense
           counsel], I understand there was discussion that
           there would be a waiver of a pre-sentence
           investigation in this matter.

                 MR. KARAM: Yes, Your Honor. I discussed it
           with my client. He agrees to waive his right to a
           pre-sentence report and ask for immediate
           sentencing. Is that correct, Mr. Martinez?

           THE DEFENDANT: Yeah.

           MR. KARAM: Yes?

           THE DEFENDANT: Yes.

                                 *    *    *
           THE COURT: By waiving the pre-sentence report,
           you are basically leaving it to what can be presented
           here today without the benefit and the reflection of a
           pre-sentence investigation. Do you understand that?

           THE DEFENDANT: Yes.

                                *    *    *

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           THE COURT: Mr. Martinez, you’re quite certain you
           wish to waive the pre-sentence report and proceed
           to sentencing?

           THE DEFENDANT: Yes.

           THE COURT: Very well. I will grant your motion and
           allow you to proceed to sentencing at his time.

            The lower court then proceeded to sentencing.       After
     hearing statements from Appellant, Appellant’s counsel, one of
     the victims, and the Commonwealth’s attorney, the lower court
     sentenced Appellant to a term of incarceration of twenty-four to
     fifty years.

           On July 13, 2011, Appellant filed a timely petition for
     reconsideration in which he claimed, inter alia, that the lower
     court failed to adequately consider the mitigating factors in his
     case. Nowhere in this petition did Appellant claim that the lower
     court erred in not ordering a PSI. On July 15, 2011, the lower
     court denied the petition without a hearing. On or about August
     12, 2011, Appellant filed a timely notice of appeal.

(Commonwealth          v.   Martinez,   No.   2480   EDA   2011,   unpublished

memorandum at *1-4 (Pa. Super. filed Aug. 8, 2012) (record citations and

footnotes omitted)).

     On August 8, 2012, a panel of this Court affirmed Appellant’s

judgment of sentence. On July 1, 2013, Appellant, acting pro se, filed the

instant PCRA petition.       The PCRA court appointed counsel, Victor E.

Scomillio, Esq., who filed an amended petition on August 28, 2013.        The

PCRA court held an evidentiary hearing on the petition on November 1,




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2013,2 at which Appellant and Attorney Karam testified.3 On November 5,

2013, the PCRA court entered its order denying the petition. 4     This timely

appeal followed.5

       Appellant raises the following issues for our review:

       1.   [Was] [t]rial counsel . . . ineffective for failing to request a
       presentence investigation report, despite Appellant’s entitlement to the
       compilation of the report and despite the serious nature of the charges
       to which Appellant pled guilty and on which Appellant was to be
       sentenced[?]


____________________________________________


2
  At the outset of the hearing, Appellant indicated that he was not satisfied
with Mr. Scomillio’s representation. (See PCRA Court Opinion, 1/23/14, at
8). The court permitted Appellant to proceed pro se after conducting an
extensive colloquy. It required Attorney Scomillio to serve as standby
counsel. (See id.).
3
  Appellant raised the issue of ineffective assistance of appellate counsel,
Robert E. Sletvold, Esq. at the PCRA hearing. (See N.T. PCRA Hearing,
11/01/13, at 12).     However, although Attorney Sletvold attended the
hearing and was available to testify, Appellant did not call him as a witness.
(See PCRA Ct. Op., at 12 n.35, 25).
4
  On November 20, 2013, the PCRA court appointed Robert Eyer, Esq., to
represent Appellant. Attorney Eyer filed a motion to withdraw, which this
Court granted on March 24, 2014.         The trial court then appointed
Christopher Brett, Esq., who failed to file a brief with this Court. On
September 5, 2014, this Court remanded the matter to the PCRA court for a
determination of whether counsel abandoned Appellant.          The court
subsequently appointed current counsel.
5
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on December 23, 2013. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on January 23,
2014. See Pa.R.A.P. 1925(a).




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      2.     [Was] [a]ppellate counsel . . . ineffective for failing to argue that
      the trial court’s consecutive standard-range sentences amounted to an
      excessive aggregate sentence[?]

      3.    [Was] [t]rial counsel . . . ineffective for failing to argue that
      Appellant’s sentence was excessive in light of the sentence received by
      his co-defendant, and [were] PCRA hearing counsel and previous PCRA
      appellate counsel . . . ineffective for failing to raise trial counsel’s
      ineffectiveness[?]

(Appellant’s Brief, at 5).

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

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      In his first issue, Appellant contends that trial counsel’s failure to

request a PSI report constituted ineffective assistance of counsel.         (See

Appellant’s Brief, at 18-24).        Appellant claims that the background

information Attorney Karam presented at sentencing was inadequate and

that he derived no benefit from foregoing a PSI. (See id. at 21, 24). This

issue is waived.

      Pennsylvania Rule of Appellate Procedure 1925(b) provides that

“[i]ssues not included in [an appellant’s 1925(b)] Statement . . . are

waived.” Pa.R.A.P. 1925(b)(4)(vii). An en banc panel of this Court has held

that “our Supreme Court does not countenance anything less than stringent



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application of waiver pursuant to Rule 1925(b)[.]”       Greater Erie Indus.

Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super.

2014) (en banc) (case citation omitted); see also Commonwealth v.

Dozier, 99 A.3d 106, 110 (Pa. Super. 2014), appeal denied, 104 A.3d 523

(Pa. 2014) (deeming appellant’s issues waived for failure to present them in

his Rule 1925(b) statement).

       Here, Appellant filed a three-page, twelve-paragraph, Rule 1925(b)

statement “rais[ing] a multitude of alleged errors in regard to [the] denial of

his first PCRA petition.”        (PCRA Ct. Op., at 10; see also Rule 1925(b)

Statement, 12/23/13, at unnumbered pages 1-3).            However, Appellant’s

Rule 1925(b) statement does not raise the first issue he discusses in his

brief alleging trial counsel ineffectiveness for failure to request a PSI report.

(See Appellant’s Brief, at 18). Therefore, we deem Appellant’s first issue on

appeal waived. See Pa.R.A.P. 1925(b)(4)(vii).

       In his second issue, Appellant claims that appellate counsel, Attorney

Sletvold, was ineffective for failing to argue that his aggregate sentence was

excessive on direct appeal. (See Appellant’s Brief, at 5, 24-27).6 He asserts

____________________________________________


6
  We note that Appellant presents this issue in an extremely vague manner
in his Rule 1925(b) statement: “1. The PCRA court erred in concluding that
counsel was not ineffective for failing to challenge the excessive nature of
the sentence.” (Rule 1925(b) Statement, 12/23/13, at unnumbered page 1
¶ 1). However, the PCRA court was able to discern the crux of Appellant’s
claim based on his argument at the PCRA hearing. (See PCRA Ct. Op., at
25-33; see also N.T. PCRA Hearing, 11/01/13, at 12; PCRA Petition,
(Footnote Continued Next Page)


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“[f]or all the offenses on which [he] received consecutive sentences . . . the

court imposed a minimum sentence at the highest end of the standard range

for every single offense except for one of the access device fraud charges.”

(Appellant’s Brief, at 25). Appellant concedes that the court sentenced him

within guideline ranges, but argues that the imposition of consecutive

sentences at the highest end of the ranges was unreasonable and excessive

in light of his criminal conduct because the court, in effect, imposed a life

sentence.    (See id. at 24, 27).         Appellant further maintains that Attorney

Sletvold had no possible strategic basis for failing to raise this issue on direct

appeal, and that counsel’s inaction prejudiced him. (See id. at 27). This

issue lacks merit.

      To be eligible for relief under the PCRA on grounds of ineffective

assistance of counsel, a petitioner must plead and prove by a preponderance

of the evidence that the conviction or sentence resulted from “[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).

      It is well-established that counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel’s performance was deficient and that such
      deficiency prejudiced him. . . . [O]ur Supreme Court [has]
      articulated a three-part test to determine whether an appellant
                       _______________________
(Footnote Continued)

7/01/13, at 5; Attachment to PCRA Petition, 7/01/13, at 1).                We will
therefore address the issue.



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         has received ineffective assistance of counsel. Appellant must
         demonstrate that: (1) the underlying legal issue has arguable
         merit; (2) counsel’s actions lacked an objective reasonable
         basis; and (3) Appellant was prejudiced by counsel’s act or
         omission.

Commonwealth v. Johnson, 51 A.3d 237, 243 (Pa. Super. 2012) (en

banc), appeal denied, 63 A.3d 1245 (Pa. 2013) (citations and quotation

marks omitted). In addition, “[an appellant’s] 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) (citation

omitted).

         Where an appellant asserts that counsel was ineffective for failing to

challenge the discretionary aspects of his sentence, “if the PCRA court can

determine from the record that the sentence was not excessive . . . then

there is no underlying merit to the ineffectiveness claim and the claim must

fail.”   Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008).         We are also mindful that “the

sentencing court has broad discretion in choosing the range of permissible

confinements which best suits a particular defendant and the circumstances

surrounding his crime.”      Commonwealth v. Hill, 66 A.3d 365, 370 (Pa.

Super. 2013) (citation omitted). “In addition, [i]n imposing a sentence, the

trial judge may determine whether, given the facts of a particular case, a

sentence should run consecutive to or concurrent with another sentence

being imposed.” Id. (citation and internal quotation marks omitted).




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      Here, the court explained its rationale for imposing Appellant’s

sentences consecutively as follows:

            With regard to [Appellant’s] conduct in this case, he
      admitted that he was the mastermind of a conspiracy with
      [Jeremiah] Nieves to burglarize and rob the victims in this case.
      While inside of the victims’ home, [Appellant], who was already
      carrying a handgun, and Nieves obtained and collected items
      that they would use to subdue, maintain, and control the
      victims. They eventually attacked and captured the victims, and
      they bound and blind-folded the victims in separate areas of the
      basement to further traumatize them. Over the course of a few
      hours, [Appellant] and Nieves terrorized the victims and
      threatened to kill them and their teenage daughter, who was
      fortunately not home at the time. They also tortured [one of the
      victims] in the manner in which he was bound and also by
      spraying chemicals into his eyes. [Appellant] and Nieves stole
      approximately $60,000 in items from the victims and withdrew
      money from two separate ATM machines by using stolen bank
      cards. This conduct is expressly the type of egregious conduct
      that warranted the imposition of consecutive sentences in this
      case[.] . . .

(PCRA Ct. Op., at 29-30).

      Upon review of the record, we find no merit to Appellant’s contention

that appellate counsel was ineffective for failing to challenge the sentence as

excessive in light of his crimes on direct appeal. See Jones, supra at 908-

09 (finding on collateral review consecutive sentences resulting in lengthy

aggregate sentence appropriate where appellant perpetrated home invasions

and committed acts of violence against victims; counsel was not ineffective

for failing to challenge sentence as excessive).         Because Appellant’s

underlying claim is devoid of merit, counsel cannot be ineffective for failing

to pursue it. See id.; see also Commonwealth v. Koehler, 36 A.3d 121,



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144 (Pa. 2012) (“counsel cannot be deemed ineffective for failing to pursue

a meritless claim”) (citation omitted).      Appellant’s second issue does not

merit relief.

      In his third issue, Appellant claims “Attorney Karam was ineffective for

failing to challenge the sentencing disparity between [Appellant] and co-

defendant Nieves, and Attorney Scomillio, Attorney Eyer, and Attorney Brett

were ineffective for failing to raise Attorney Karam’s ineffectiveness.”

(Appellant’s Brief, at 28). However, Appellant failed to include this issue in

his Rule 1925(b) statement.    (See Rule 1925(b) Statement, 12/23/13, at

unnumbered pages 1-3).       We therefore deem Appellant’s final issue on

appeal waived. See Pa.R.A.P. 1925(b)(4)(vii). Accordingly, we affirm the

order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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