J-S62006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

 WILLIAM THOMAS CLARK

                             Appellant               No. 254 MDA 2017


             Appeal from the PCRA Order entered January 11, 2017
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0002146-2014


BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 21, 2017

       Appellant, William Thomas Clark, appeals from the January 11, 2017

order entered in the Court of Common Pleas of Dauphin County, denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

       Our review of the record reveals that Appellant was arrested on

December 7, 2013 and was charged, inter alia, with possession of a firearm

prohibited, possession of a small amount of marijuana, and driving with a




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* Retired Senior Judge assigned to the Superior Court.
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broken fog light.1 Following a June 11, 2014 trial, the jury found Appellant

guilty of the firearms violation and the trial court found him guilty of

possession of marijuana and the summary offense for driving with a broken

fog light. The trial court sentenced Appellant to a term of four to eight years

in prison for the firearms violation and imposed fines and costs for the

remaining offenses.

       On direct appeal to this Court, Appellant claimed that the verdict was

against the weight of the evidence and that the trial court imposed an

excessive sentence, failing to take into consideration mitigating factors.

Commonwealth v. Clark, 2172 MDA 2014, unpublished memorandum (Pa.

Super. filed August 19, 2015). This Court affirmed, concluding the verdict

was not against the weight of the evidence and that Appellant failed to raise

a substantial question regarding his sentence. Id.2

       Appellant filed a timely pro se PCRA petition on June 3, 2016. Counsel

was appointed and filed an amended petition on July 5, 2016. In his amended

petition, Appellant argued ineffective assistance of trial counsel for failing to


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1 18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 708-113(a)(31)(i), and 75 Pa.C.S.A.
§ 4107(b)(2), respectively. Appellant was initially charged with additional
related offenses, which the Commonwealth withdrew prior to trial.

2 The Court determined that Appellant’s challenge to his sentence, even if it
raised a substantial question, would be rejected as meritless because the trial
court considered the mitigating factors raised by Appellant and appropriately
imposed a sentence in the mitigated range. Commonwealth v. Clark, 2172
MDA 2014, unpublished memorandum at 11 (Pa. Super. filed August 19,
2015).

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conduct pre-trial discovery, failing to receive discovery in a timely manner,

and failing to review the discovery with Appellant to discuss a viable defense.

Appellant also claimed ineffective assistance of appellate counsel for failing to

file a petition for allowance of appeal to our Supreme Court and failing to

allege ineffective assistance of trial counsel on direct appeal. Appellant also

asserted that his sentence was excessive and illegal.

      On December 5, 2016, the PCRA court issued an order in accordance

with Pa.R.Crim.P. 907, informing Appellant of the court’s intention to dismiss

the petition and advising him of the opportunity to file a response within

twenty days. Appellant did not file a response. By order entered January 11,

2017, the PCRA court dismissed the petition.

      Appellant filed a timely appeal from the January 11, 2017 order. The

PCRA court directed Appellant to file a concise statement of errors complained

of on appeal in accordance with Pa.R.A.P. 1925(b) and Appellant complied.

Appellant asserted that trial counsel was ineffective for failing to conduct any

pre-trial investigation and for “allowing” Appellant to be sentenced within the

wrong guideline range.    Appellant’s Rule 1925(b) Statement, 3/8/17, at 4

(unnumbered).     Appellant also claimed that he was sentenced under the

wrong standards based on an incorrect offense gravity score (“OGS”) score,

but acknowledged the sentence imposed was not an illegal sentence. Id. at

5 (unnumbered). In its Rule 1925(a) opinion filed on March 22, 2017, the

PCRA court explained that its reasons for dismissing the petition were set forth


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in the December 5, 2016 opinion that accompanied its Rule 907 notice of

dismissal.

      On appeal, Appellant asks us to consider two issues:

      1. Whether trial counsel was ineffective?

      2. Whether the Appellant was sentenced under the wrong
         statute/offense gravity score (OGS)?

Appellant’s Brief at 7.

      In his first issue, Appellant asserts that his trial counsel was ineffective

in three respects: that he failed to conduct any pre-trial investigation, that

he failed to file either a suppression motion or a motion for nominal bail, and

that he “allowed” Appellant to be sentenced within the wrong guideline range.

As this Court has recognized:

      “On appeal from the denial of PCRA relief, our standard and scope
      of review is limited to determining whether the PCRA court’s
      findings are supported by the record and without legal error.”
      Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
      (citation omitted). “[Our] scope of review is limited to the findings
      of the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the PCRA court level.”
      Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
      (2012) (citation omitted).       “The PCRA court’s credibility
      determinations, when supported by the record, are binding on this
      Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
      (2011) (citation omitted). “However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en

banc).

      As the PCRA court recognized, counsel is presumed to be effective and

Appellant bears the burden of establishing he was not. Opinion in Support of

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Rule 907 Notice, 12/5/16, at 2 (citing Commonwealth v. Hutchinson, 556

A.2d 370, 371 (Pa. 1989)). Appellant must demonstrate that his claim is of

arguable merit, that counsel had no reasonable strategic basis for his action

or inaction, and that, but for the errors or omissions of counsel, there is a

reasonable probability the outcome would have been different. Id. at 3 (citing

Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987)).                 Further,

Appellant must establish that his claims have not been litigated or waived.

Id. (citing 42 Pa.C.S.A. § 9543(a)(3)). Generally, an issue is deemed litigated

if considered and decided on direct appeal, and is deemed waived if it could

have been raised at trial or on direct appeal but was not. See 42 Pa.C.S.A.

§ 9544(a)(2) and (b).

      The PCRA court rejected Appellant requested relief for the claimed lack

of pre-trial investigation, noting that the cases Appellants relied on were

distinguishable from Appellant’s case. Opinion in Support of Rule 907 Notice,

12/5/16, at 4. The PCRA court noted that one cited case involved murder

charges whereas Appellant’s case involved the comparatively less serious

charges of a firearms violation, possession of a small amount of marijuana,

and a summary offense for a broken fog lamp. The other cited case involved

counsel’s failure to interview witnesses disclosed in discovery.    No similar

allegations were raised here.     Rather, Appellant simply complained that

counsel failed to meet with him to review discovery.        Id.    Importantly,




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Appellant failed to demonstrate a reasonable probability the outcome would

have been different if counsel had met with him prior to trial.

      With respect to counsel’s alleged failure to file a suppression motion or

a motion for nominal bail, we first note that Appellant did not assert any claims

concerning the failure to file motions in either his pro se PCRA petition or his

counseled amended petition. Therefore, he did not preserve the issue. Even

if he had, Appellant fails to acknowledge that he did not want to delay his trial

by filing a suppression motion. See Notes of Testimony, Trial, 6/11/14, at 5-

16. Regarding the Rule 600 motion, the record does not reflect that Appellant

asked counsel to file such a motion, despite Appellant’s suggestion to the

contrary in his Rule 1925(b) statement. Rule 1925(b) Statement, 3/8/17, at

4 (unnumbered).       Further, while it was acknowledged during pre-trial

proceedings on June 10, 2014 that the 180-day time period had elapsed a few

days earlier, Appellant has not demonstrated how the outcome would have

been different if a Rule 600 motion had been presented at that time.

Moreover, we note Appellant received credit for time served for those few

days, meaning he actually will complete his sentence sooner than if he had

been released on nominal bail on the day before his trial or even on the 180th

day, two or three days prior to trial.

      Appellant also claims that trial counsel was ineffective for allowing

Appellant to be sentenced within the wrong guideline range. Specifically, he

contends that the trial court would have imposed a lesser sentence if counsel


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had argued that the OGS of 10 was incorrect and should have been 9.

However, Appellant has failed to establish that the outcome would have been

different if counsel had contested the Commonwealth’s assertion of an OGS of

10. As the PCRA judge, who was also the sentencing judge, explained:

      [Appellant] was convicted of possession of a firearm prohibited,
      which is graded as a felony 2 and carries a maximum sentence of
      ten years’ incarceration, 18 Pa.C.S. § 6105(a.1), regardless of
      whether the OGS is a nine or a ten. [Appellant] received a
      sentence of four to eight years, well within the statutory
      maximum.

Opinion in Support of Rule 907 Notice, 12/5/16, at 6.

      We find the PCRA court’s findings on Appellant’s ineffectiveness claims

are supported by the record and are without legal error.        Appellant is not

entitled to relief on his first issue.

      In his second issue, Appellant again raises the issue of his OGS. As the

PCRA court observed, “Specifically, he contends, because the gun he was

found in possession of was not loaded, his OGS should have been a nine rather

than a ten. Thus, he claims, . . . he could have received a lesser sentence.”

Opinion in Support of Rule 907 Notice, 12/5/16, at 5.

      Appellant acknowledges that his sentencing claim is not a claim of

illegality of sentence. Rather, it is a challenge to the discretionary aspects of

sentence.    Appellant’s Brief at 12 (citing Commonwealth v. Archer, 722

A.2d 203, 211 (Pa Super. 1998)).         Further, Appellant recognizes the four

prerequisites for a challenge to the discretionary aspects of sentencing,

including the requirement that the issue must be preserved at sentencing or

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in a motion to reconsider or modify the sentence. Id. (citing Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011)).

      While Appellant did preserve an excessive sentence claim in his post-

sentence motion, that claim involved the trial court’s alleged failure to

consider mitigating circumstances in imposing Appellant’s sentence.        This

Court rejected that claim on direct appeal, finding that Appellant did not raise

a substantial question. See n. 2, supra. Appellant failed to preserve the issue

he now asks us to consider in this appeal. Therefore, it is waived. See 42

Pa.C.S.A. § 9544(b).)

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




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