J-S06019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHEAD BURNEY                             :
                                               :
                       Appellant               :   No. 309 EDA 2019

             Appeal from the PCRA Order Entered January 11, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012646-2014

BEFORE:       LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 08, 2020

       Rashead Burney appeals from the order denying his petition filed under

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

affirm.

       Burney pled guilty to aggravated assault, criminal conspiracy, violation

of the Uniform Firearms Act (VUFA), and possession of an instrument of crime

(PIC).1 Burney executed a Written Guilty Plea Colloquy on August 21, 2015

before entering into a non-negotiated guilty plea. That same day, the trial

court sentenced Burney to serve an aggregate term of 7½ to 17 years’

imprisonment. Burney did not file a motion for reconsideration or notice of

appeal.


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1  See 18 Pa.C.S.A. §§ 2702(a)(1), 903(c), 6106(a)(1), and 907(a),
respectively.
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      Proceeding pro se, Burney filed a timely PCRA petition, alleging that trial

counsel had been ineffective for failing to file a motion for reconsideration of

his sentence. The PCRA court appointed counsel, who filed an amended

petition.

      The PCRA court held an evidentiary hearing on January 11, 2019.

Burney testified that, one or two days after his sentencing, his former

girlfriend initiated a three-way conference call with Burney and trial counsel.

See N.T., 1/11/19, at 8. Burney stated that during that conference call he

directed trial counsel to file a motion for reconsideration. Id. at 8-9. Burney

also testified that counsel had mailed him a letter regarding his sentence, to

which Burney replied by letter, again instructing him to file a motion for

reconsideration. Id. On cross-examination, however, Burney admitted that he

did not have a copy of his letter to counsel. Id. at 16-17

      Trial counsel also testified at the hearing. He stated that Burney had not

asked him to file a motion for reconsideration. Id. at 23. Counsel testified as

to his routine practice of filing the motions or appeals requested by his clients.

Id. at 36-37. He stated that he sent Burney a letter, dated August 26, 2015,

explaining his sentence and his post-sentencing rights. Id. at 23, 27. In the

letter, counsel expressed his disappointment with Burney’s sentence, but

explained to Burney that the sentence was legal and that the court would be

unlikely to reconsider it. See Letter, 8/26/15. Counsel testified that he did not

recall receiving a reply letter from Burney. See N.T., 1/11/19, at 23.




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      Counsel also testified that, while Burney had not responded to his post-

sentencing letter, Burney did mail him a letter dated June 5, 2016. Id. at 30.

That letter did not mention a motion for reconsideration. Rather, Burney had

written to discuss whether he could appeal his aggravated assault conviction.

See Letter, 6/5/16. Counsel responded to Burney by letter, advising him that

he could file a PCRA petition. See Letter, 7/28/16.

      Further, counsel testified that he did not recall speaking with Burney by

phone after his sentencing. See N.T., 1/11/19, at 23. Counsel noted that

Burney had given him permission to speak with his former girlfriend about his

case and that counsel spoke with her on occasion. Id. at 28. Counsel testified,

however, that he did not recall speaking with Burney’s girlfriend after the

sentencing. Id.

      The PCRA court denied Burney’s request for relief at the conclusion of

the evidentiary hearing. It did so in light of trial counsel’s testimony, his

system of archiving correspondence with Burney, his post-sentencing letter to

Burney,   and     Burney’s   letter   making   no   mention   of   a   motion   for

reconsideration. See N.T., 1/11/19, at 46-47. Burney filed a timely notice of

appeal on January 24, 2019. In his Rule 1925(b) statement, Burney argued

that (1) trial counsel was ineffective for not filing a motion for reconsideration

of his sentence and (2) the PCRA court erred by failing to reinstate Burney’s

reconsideration rights nunc pro tunc. See Pa.R.A.P. 1925(b). Burney filed his




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appellate brief on or about July 23, 2019. The Commonwealth did not file a

responsive brief, despite requesting four filing-extensions from the Court.2

       Burney raises the following issue on appeal:

       Did the trial court err in denying [Burney the] right to file motion
       to reconsider sentence nunc pro tunc when [Burney] showed trial
       defense counsel was ineffective for not filing a motion to
       reconsider sentence after [Burney] was sentenced?

Burney’s Br. at 2.

       Our standard of review for the denial of post-conviction relief “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ligon, 206 A.3d 515, 518 (Pa.Super. 2019) (quoting Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)). This Court reviews the legal

conclusions of the PCRA court de novo, and we view the PCRA court’s

credibility determinations as binding when supported by the record.

Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019).

       A PCRA petitioner claiming ineffective assistance of trial counsel must

prove the three prongs of the Strickland/Pierce test.3 Burney must show


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2  The docket reflects that the Court granted at least two of the
Commonwealth’s time-extension requests, granting the Commonwealth’s
second request on November 8, 2019 and its third on December 6, 2019. On
January 10, 2020, the Court entered an order denying the Commonwealth’s
fourth time-extension request.
3 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).

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that: “(1) [his] underlying claim has arguable merit; (2) no reasonable basis

existed for counsel’s actions or failure to act; and (3) [he] suffered prejudice

as a result of counsel’s error, with prejudice measured by whether there is a

reasonable probability that the result of the proceeding would have been

different had counsel not erred.” Commonwealth v. Rivera, 199 A.3d 365,

374 (Pa. 2018). We presume counsel to have been effective, and the petitioner

bears the burden of proving otherwise. Commonwealth v. Wholaver, 177

A.3d 136, 144 (Pa. 2018). Failure to satisfy even one element of the test

defeats a petitioner’s claim. Id.

      Instantly, Burney claims that trial counsel was ineffective “for not filing

a motion to reconsider sentence when requested to do so by the defendant

and . . . fail[ing] to discuss the pros and cons of filing the motion to reconsider

sentence when counsel believed that the sentence imposed by the trial court

was too harsh.” Burney’s Br. at 6. Burney’s claim fails, in part, because he has

not shown that counsel lacked a reasonable basis for his conduct. Burney

failed to prove that he requested counsel to file a motion for reconsideration.

Although Burney testified that he instructed counsel to do so, the record

supports the court’s finding that he did not. Burney claims that he instructed

counsel by phone two days after his August 21, 2015 sentencing. Counsel’s

August 26, 2015 letter advising Burney of his post-sentencing rights, however,

does not mention this phone call or request for reconsideration. Burney also

claims to have requested reconsideration in response to counsel’s August 26,


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2015 letter, yet he cannot produce a copy of that request. The PCRA court

acknowledged counsel’s careful archiving and ability to readily produce all

correspondence with Burney. By memorandum dated July 8, 2019, the PCRA

court “credited the testimony of [counsel] and discredited the testimony of

[Burney], i.e., that [he] timely requested trial counsel to file a motion for

reconsideration.” See Memorandum, 7/8/19, at 7. Again, the PCRA court’s

credibility determinations are binding on this Court when supported by the

record. See Montalvo, 205 A.3d at 286.

       Further, Burney has not shown that prejudice resulted from trial

counsel’s conduct. The Pennsylvania Supreme Court has explained that finding

counsel ineffective depends on whether a defendant “has proven that a motion

to reconsider sentence, if filed . . . would have led to a different and more

favorable outcome at . . . sentencing.” Commonwealth v. Reaves, 923 A.2d

1119, 1132 (Pa. 2007). The PCRA court concluded that Burney failed to prove

that the filing of a motion for reconsideration would have changed the outcome

of his sentencing. It noted that the sentence imposed by the trial court falls

within the Sentencing Guidelines and conforms to the Sentencing Code.4 It

further reasoned that counsel advised Burney that his sentence lacked

grounds for appeal and that the trial court would not likely reconsider it. See

Letter, 8/26/2015. The record supports the PCRA court’s findings, and we


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4 The trial court’s imposed sentence of 7½ to 17 years’ imprisonment falls
below the maximum sentence of 51 to 102 years that Burney faced.

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conclude that it did not err in finding that Burney failed to establish prejudice.

Beyond repeating that counsel was disappointed with the sentence Burney

received, Burney has not shown that a motion for reconsideration would have

altered his sentence. Therefore, we find that Burney’s PCRA claim is meritless.

      We conclude that Burney’s ineffectiveness claim fails. Accordingly, we

affirm the PCRA court’s order denying Burney relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/20




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