J-S61006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            IN THE SUPERIOR COURT OF
    PENNSYLVANIA                                     PENNSYLVANIA

                             Appellee

                     v.

    HERMAN CAVE

                             Appellant             No. 451 EDA 2017


                Appeal from the PCRA Order January 9, 2017
           In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0002184-2006,
            CP-46-CR-0005508-2013, CP-46-CR-0005689-2014


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 06, 2017

        Herman Cave appeals from the order entered in the Court of Common

Pleas of Montgomery County dismissing his Post-Conviction Relief Act1

(“PCRA”) petition. After review, we affirm.

        Cave pled guilty to aggravated assault2 after he shot Raheem Jones-

Gant during a robbery.         At the time of the shooting, Cave was on both

probation and parole due to prior convictions for possession with intent to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. § 9541 et seq.

2   18 Pa.C.S. § 2702.
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distribute3 (convicted 2013) and robbery4 (convicted 2006). In exchange for

his guilty plea, the Commonwealth agreed to nolle pros thirty additional

charges arising from the same incident, to seek a lesser sentence than the

statutory    maximum,       and    to    decline   the   application   of   sentencing

enhancements to Cave’s sentence.

       After Cave pled guilty, he was sentenced to six to twelve years’

incarceration for the aggravated assault charge, four to eight years’

incarceration for the probation and parole violations of the prior possession

conviction, and six to twelve years’ incarceration for the probation and parole

violations of the robbery conviction. Each sentence ran concurrently from July

21, 2014, the date of Cave’s arrest, which resulted in an aggregate sentence

of six to twelve years’ incarceration.

       Cave did not file a direct appeal, but instead filed a timely pro se PCRA

petition on April 5, 2016. In response, the PCRA court appointed counsel,

Bonnie-Anne Brill Keagy, Esquire, to assist with Cave’s PCRA petition.

However, after several months of investigation, Attorney Keagy filed a detailed

Turner5/Finley6 no-merit letter on October 4, 2016 and was permitted to

withdraw from representation. Judge Furber issued a Pa.R.Crim.P. 907 notice

____________________________________________


3   CP-46-CR-0005508-13

4   CP-46-CR-0002184-06

5   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

6   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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of intent to dismiss on October 5, 2016, and Cave filed his pro se response to

that notice on December 19, 2016. Cave’s PCRA petition was dismissed on

January 9, 2017, and Cave filed this timely pro se appeal.

      In his appeal, Cave raises five issues, several of which are related. First,

he argues that the PCRA court erred in dismissing his PCRA petition without a

hearing, because he believes his claims have merit. Second, Cave argues that

his trial counsel was ineffective for advising him to enter a guilty plea, and

that his PCRA counsel was ineffective, in essence, for withdrawing from

representation.   Third, Cave argues that the negotiated sentence imposed

pursuant to his guilty plea was illegal. Fourth, Cave argues that, in light of

the alleged illegality of the sentence and the ineffectiveness of his counsel, his

constitutional rights were violated. Fifth, Cave combines the above arguments

to reiterate that his counsel was ineffective, that his sentence was illegal, and

that he was misinformed as to the nature of his plea. Each of these arguments

is meritless, and we affirm the PCRA court’s dismissal.

      When reviewing an order denying PCRA relief, we examine whether the

PCRA court’s determination is supported by the record and is free of legal

error. Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). The

PCRA court is justified in dismissing a petition without an evidentiary hearing

when, after review, “the judge is satisfied from this review that there are no

genuine issues concerning any material fact and that the defendant is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Pa.R.Crim.P. 907. An evidentiary hearing is not

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a matter of right, and a petitioner must raise an issue of fact to justify such a

hearing. Commonwealth v. Keaton, 45 A.3d 1050 (Pa. Super. 2012). Here,

Cave raised no such issues of fact, and thus the PCRA court’s dismissal was

not in error.

          Attorney Keagy’s no-merit letter provided a detailed and well-reasoned

analysis of the reasons why Cave’s PCRA petition was meritless. As both she

and Judge Furber explained, Cave’s guilty plea limited his avenues for appeal,

and Cave’s petition failed to raise an issue which would merit PCRA relief.

Dismissal without hearing was proper, and Cave’s first claim warrants no

relief.

          Regarding Cave’s second issue, ineffective assistance of counsel, the

PCRA court committed no error in dismissing Cave’s petition. To be entitled

to relief for ineffective assistance of counsel, a PCRA petitioner must establish

that: 1) the underlying claim has merit; 2) there was no reasonable basis for

counsel’s action or failure to act; and 3) but for the counsel’s course of

conduct, there is a “reasonable probability the result of the proceeding would

have been different.” Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa.

2015).       Failure to satisfy any of the three prongs is fatal to a claim of

ineffective assistance of counsel. Commonwealth v. Pond, 846 A.2d 669

(Pa. Super. 2004). Counsel is presumed to provide effective assistance, and

it   is     solely   the   petitioner’s   burden   to   establish   ineffectiveness.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).




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      Cave argues that his counsel at all stages has been ineffective, both at

trial and at the PCRA level. This claim is underdeveloped on appeal, but to

the extent that a cognizable claim can be discerned, said claim depends on

Cave being dissatisfied with the explanation he received regarding the

consequences of his guilty plea. More specifically, Cave believes that he was

misled regarding the sentencing guidelines which would apply to his probation

and parole violations, and that the sentences imposed were more severe than

he had anticipated.   This, in Cave’s eyes, warrants a finding of ineffective

assistance by his trial counsel.

      However, the record does not reveal any way in which Cave was misled

or misinformed, and Cave intelligently signed the guilty plea colloquy and

confirmed his understanding on the record.        N.T. Guilty Plea Hearing,

12/15/2015, at 6-8. The colloquy itself was fully compliant with Pa.R.Crim.P.

590 and it sufficiently described the nature of the plea and its consequences.

See Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995); see also

Commonwealth v. Pollard, 832 A.2d 517 (Pa. Super. 2003). Despite being

given numerous opportunities to seek clarification at his guilty plea hearing,

Cave did not take advantage of these opportunities, and no relief is due on

this basis.

      Cave also alleges that his PCRA counsel was ineffective for choosing to

withdraw from his appeal, but this is unfounded. Attorney Keagy complied

fully with the court’s procedural requirements before her withdrawal, and she

thoroughly investigated Cave’s claims prior to submitting her no-merit letter.

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Cave argues that Attorney Keagy’s withdrawal prejudiced his appeal, but her

withdrawal was conditioned on her belief, and the trial court’s agreement, that

the underlying appeal had no merit to begin with. Thus, this claim fails to

prove ineffective assistance of counsel on all three prongs. Neither Cave’s

trial counsel nor his PCRA counsel were ineffective, and no relief is due on this

basis.

         To the extent that Cave argues that his guilty plea was not knowing or

voluntary, this claim—as noted by Judge Furber—is belied by the record. Cave

was given multiple opportunities to seek additional information, to reconsider

his plea, and to complain to the trial court if he felt that his rights were in any

way violated. See N.T. Guilty Plea Hearing, 12/15/2015, at 5-24. Instead of

doing so, Cave pled guilty and signed the colloquy, affirming on the record

that his actions were voluntary, informed, and intelligent.        Id. at 7-8.   A

thorough search of the record reveals no evidence that Cave was misinformed

or misled by his counsel. In the absence of a more well-developed claim that

his plea was not knowing or voluntary, the PCRA court committed no error in

dismissing Cave’s petition.

         Cave’s third, fourth, and fifth claims are inexorably intertwined with the

allegation that his sentence was illegal.        Cave mixes several sentencing

standards to reach the conclusion that his sentence was unlawful, but—as the

Commonwealth identifies in its brief, as Judge Furber identified in his order,

and as Attorney Keagy identified in her no-merit letter—Cave’s sentence was




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fully compliant with the sentencing guidelines for the crimes to which he pled

guilty.

      “The general rule in Pennsylvania is that in imposing a sentence the

court has discretion to determine whether to make it concurrent with or

consecutive to other sentences then being imposed or other sentences

previously imposed.” Commonwealth v. Hoag, 665 A,2d 1212, 1214 (Pa.

Super. 1995) (citation omitted). Further, upon revocation of probation, “the

trial court is limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.”      Commonwealth v.

Colon, 102 A.3s 1033, 1044 (Pa. Super. 2014).           Under these principles,

Cave’s aggregate sentence of six to twelve years’ incarceration is well within

the sentencing limits and is not illegal.      Because Cave’s sentence was not

illegal, his claims warrant no relief.

      Cave’s final claim is that he derived no benefit from his guilty plea, and

that he thus cannot be held to its terms.          His claim of “no benefit” is

unfounded. To the contrary, Cave’s trial counsel successfully negotiated the

dismissal of thirty additional charges and the ultimate imposition of a sentence

far below the statutory maximum. Furthermore, the terms of the guilty plea

precluded the Commonwealth from applying sentencing enhancements which

could have resulted in a substantially more severe sentence. In the absence

of an appealable right enumerated by the PCRA, dissatisfaction with one’s

sentence is an insufficient ground for relief. Commonwealth v. Bedell, 954

A.2d 1209 (Pa. Super. 2008).

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      In short, Cave has failed to establish any basis upon which relief is due.

His sentence was legal, his counsel was effective, and his plea was knowing

and voluntary. Judge Furber’s dismissal of the PCRA petition was not in error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2017




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