J-S59024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRETT ALAN SHEARD

                            Appellant                No. 3366 EDA 2013


                 Appeal from the PCRA Order October 31, 2013
                In the Court of Common Pleas of Wayne County
              Criminal Division at No(s): CP-64-CR-0000130-2009


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 12, 2014

        Brett Alan Sheard appeals pro se from the order entered in the Court

of Common Pleas of Wayne County dismissing his petition filed under the

Post Conviction Relief Act (“PCRA”).1 The PCRA court denied Sheard’s PCRA

petition on the ground that the issues raised therein were previously

litigated. After careful review, we affirm.

        On October 8, 2009, Sheard pled guilty to one count each of

involuntary deviate sexual intercourse (“IDSI”),2 incest,3 and indecent
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 4302.
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assault,4 in connection with sexual acts Sheard performed on his daughters,

ages three and five. Following a Megan’s Law hearing, the court determined

Sheard to be a sexually violent predator (SVP), and imposed an aggregate

sentence of 16 to 35 years’ imprisonment. Following the denial of his post-

sentence motion, Sheard filed a direct appeal, challenging his SVP

designation as well as the discretionary aspects of his sentence. This Court

affirmed    Sheard’s     judgment      of      sentence   on   November   24,   2010.

Commonwealth v. Sheard, 22 A.3d 1080 (Pa. Super. 2010) (unpublished

memorandum).         Subsequently, on May 19, 2011, Sheard filed a PCRA

petition. The PCRA court dismissed Sheard’s petition on November 6, 2013.

This timely appeal followed.5

        On appeal, Sheard presents the following issues verbatim for our

review:

        1. Did the trial court err in finding Sheard to be a sexually
           violent predator within the meaning of the statute, as said
           finding was against the weight of the evidence presented at
           sentencing?

        2. Did the trial court err in sentencing Sheard to an aggregated
           [sic] sentence of 192 months to no more than 420 months?

        3. Did the trial court err in sentencing Sheard with being a
           previous offender when he was involuntarily incarcerated in
____________________________________________


4
    18 Pa.C.S. § 3126(a)(7).
5
  We note that Sheard filed an amendment to his brief on September 9,
2014, which raises five additional issues on appeal.      However, these
challenges are waived because they were not preserved for appeal, nor does
Sheard advance any argument in support thereof. See Pa.R.A.P. 302.



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           SCI Waymart for psychological evaluation, not to serve out a
           sentence?

        4. Did the trial court err in ordering Sheard’s sentence on count
           13 of the information and count 31 of the information to run
           consecutive to the sentence on count 1?

Brief of Appellant, at 2.

        We are guided by the following principles in our review of this appeal.

“Our 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. The PCRA court’s findings will not be disturbed unless

there    is   no   support    for   the    findings   in   the   certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal

quotation marks and citations omitted).               “The PCRA court’s factual

determinations are entitled to deference, but its legal determinations are

subject to our plenary review.”       Commonwealth v. Johnson, 966 A.2d

523, 532 (Pa. 2009) (internal quotation marks and citations omitted).

Additionally, a PCRA petitioner must adhere to certain pleading and proof

requirements.

        In order to be eligible for PCRA relief, the petitioner must prove
        by a preponderance of the evidence that his conviction or
        sentence resulted from one or more of the enumerated
        circumstances found at 42 Pa.C.S. § 9543(a)(2) (setting forth
        the eligibility requirements of the PCRA). Further, the petitioner
        must demonstrate that the issues raised in his PCRA petition
        have not been previously litigated or waived.            Id. at §
        9543(a)(3).      An issue has been previously litigated if “the
        highest appellate court in which the petitioner could have had
        review as a matter of right has ruled on the merits of the issue.”
        Id. at § 9544(a)(2). A PCRA claim is waived “if the petitioner
        could have raised it but failed to do so before trial, at trial, [. .


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     .], on appeal or in a prior state post-conviction proceeding.” Id.
     at § 9544(b).

Commonwealth v. Martin, 5 A.3d 177, 182-83 (Pa. 2010).

     Our review of the record indicates that the issues Sheard raises on

appeal have been previously litigated.     In Commonwealth v. Sheard,

supra, this Court addressed Sheard’s challenges to his SVP designation as

well as the discretionary aspects of his sentence. As noted supra, this Court

affirmed Sheard’s judgment of sentence. In addition, we found the appeal

to be frivolous, and granted counsel’s petition to withdraw.    Because the

issues Sheard now raises on appeal have been previously litigated, he is

ineligible for post-conviction relief. See 42 Pa.C.S. § 9544(a)(2); see also

Commonwealth v. Bond, 630 A.2d 1281, 1282 (Pa. Super. 1993) (claims

finally litigated where discussed thoroughly by Superior Court on direct

appeal). Accordingly, we must dismiss Sheard’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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