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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
ORIS ALVIN BARNER, JR.,                :         No. 1938 EDA 2015
                                       :
                       Appellant       :


                 Appeal from the PCRA Order, May 29, 2015,
           in the Court of Common Pleas of Northampton County
              Criminal Division at No. CP-48-CR-0003136-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 09, 2016

     Oris Alvin Barner, Jr., appeals pro se from the May 29, 2015 order of

the Court of Common Pleas of Northampton County denying his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

     The PCRA court provided the following synopsis of the factual and

procedural history:

                  On November 14, 2013, [appellant] pleaded
           guilty to Possession with Intent to Deliver [(“PWID”)]
           Heroin (35 [P.S.] § 780-113(a)(30)). On August 18,
           2013, . . . [appellant] was strip searched as an
           inmate of Northampton County Correctional Facility
           and was discovered to be in possession of five
           packets of heroin. Appellant was then charged with
           Contraband (18 Pa.C.S. § 5123(a.2)) and pleaded
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           guilty to this second charge on January 17, 2014.[1]
           On the same date, and upon consideration of the
           record, this Court sentenced [appellant] to the
           following: 33-66 months [imprisonment], plus four
           (4) years’ probation, on the PWID charge and 24-48
           months [imprisonment] on the Contraband charge,
           these sentences to run concurrently. On February 3,
           2015, [appellant] filed a Petition for Post-Conviction
           Relief and independent counsel was appointed to
           represent [appellant] on February 13, 2015.[2] On
           May 6, 2015, this Court received counsel’s “No-Merit
           Letter”[3] submitting that [appellant] was not
           entitled to post-conviction relief. This Court then
           reviewed the record and agreed with counsel’s
           assessment, issuing a Notice of Intent to Dismiss
           Without a Hearing on May 8, 2015. Appellant failed
           to respond to the Notice and this Court dismissed
           [appellant’s] Petition for Post-Conviction Relief on
           May 29, 2015. This pro se appeal followed.

PCRA court opinion, 8/26/15 at 1.

     On June 26, 2015, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant complied with the PCRA court’s order on July 15, 2015.         On

August 26, 2015, the PCRA court filed an opinion pursuant to Rule 1925(a).

     Appellant raises the following issues for our review:

           A.    Whether [t]he Commonwealth breached the
                 plea agreement with Appellant?

1
  Appellant was arrested for PWID on August 13, 2013. (Notes of testimony,
1/17/14 at 3.) He was in custody for the original PWID charge at the time of
the strip search.
2
  Appellant did not file any post-sentence motions, nor did he file a direct
appeal in this case.
3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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            B.     Whether plea counsel provided ineffective
                   assistance in allowing Appellant to enter into a
                   plea agreement without first investigating the
                   ramifications of a subsequent charge?

            C.     Whether the sentence imposed violates the
                   Sixth Amendment to the United States
                   Constitution?

            D.     Whether the trial court was without discretion
                   to impose a term of confinement followed by a
                   consecutive term of probation?

            E.     Whether PCRA counsel provided ineffective
                   assistance in failing to amend the pro se
                   petition to present the meritorious preceding
                   [sic]?

Appellant’s brief at 3.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]”        Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on


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               the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
               issue is waived if [appellant] could have raised it but
               failed to do so before trial, at trial, . . . on appeal or
               in a prior state postconviction proceeding.”          Id.
               § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      In his first issue, appellant alleges that the Commonwealth breached

the plea agreement reached with appellant.                  Specifically, appellant avers

that the Commonwealth failed “to ensure that [appellant] received the

twenty-four month minimum sentence agreed upon, and, based upon this

breach, [appellant] should be permitted to withdraw his guilty pleas.”

(Appellant’s brief at 9.)4

      Before we can address appellant’s first issue on its merits, we must

first look to whether his claim has been previously litigated or waived. The

PCRA requires that, in order for a petitioner to be eligible for relief, his or her

claim cannot have been “previously litigated or waived.”                     42 Pa.C.S.A.

§ 9543(a)(3). The PCRA mandates that an issue is waived if “the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review,   on     appeal   or     in    a   prior   state   post-conviction   proceeding.”

42 Pa.C.S.A. § 9544(b).               Our supreme court has stated that “a PCRA

petitioner’s    waiver    will   only      be    excused   upon    a   demonstration   of




4
  This appeal concerns only the sentence appellant received for his guilty
plea to the PWID charge.


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ineffectiveness of counsel in waiving the issue.”         Commonwealth v.

Albrecht, 720 A.2d 693, 700 (Pa. 1998).

      Here, appellant did not raise the issue of whether the Commonwealth

breached the plea agreement with appellant at sentencing, through a

post-sentence motion, or on direct appeal.       Moreover, appellant did not

allege that his failure to do so was caused by ineffective assistance of

counsel. We, therefore, find that appellant’s first issue is waived under the

PCRA.

      In his second issue for our review, appellant avers that his plea

counsel, Steven Mills, Esq., was ineffective because of his failure to

“adequately investigate the facts of the case.” (Appellant’s brief at 11.)

            “A criminal defendant has the right to effective
            counsel during a plea process as well as during trial.”
            [Commonwealth v. Hickman, 799 A.2d 136, 141
            (Pa.Super. 2002)]. “A defendant is permitted to
            withdraw his guilty plea under the PCRA if ineffective
            assistance of counsel caused the defendant to enter
            an involuntary plea of guilty.” Commonwealth v.
            Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).

                  We conduct our review of such a claim in
                  accordance with the three-pronged
                  ineffectiveness    test   under  section
                  9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A.
                  § 9543(a)(2)(ii). See [Commonwealth
                  v.] Lynch[, 820 A.2d 728, 732
                  (Pa.Super. 2003)]. “The voluntariness of
                  the plea depends on whether counsel’s
                  advice was within the range of
                  competence demanded of attorneys in
                  criminal cases.”     Id. at 733 (quoting
                  Commonwealth v. Hickman, 2002 PA



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                 Super 152, 799          A.2d    136,   141
                 (Pa.Super. 2002)).

                 In order for Appellant to prevail on a
                 claim of ineffective assistance of counsel,
                 he must show, by a preponderance of
                 the evidence, ineffective 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.
                 Commonwealth v. Kimball, 555 Pa.
                 299, 724 A.2d 326, 333 (Pa. 1999).
                 Appellant must demonstrate:         (1) the
                 underlying claim is of arguable merit;
                 (2) that counsel had no reasonable
                 strategic basis for his or her action or
                 inaction; and (3) but for the errors and
                 omissions of counsel, there is a
                 reasonable probability that the outcome
                 of the proceedings would have been
                 different. Id. The petitioner bears the
                 burden of proving all three prongs of the
                 test.    Commonwealth v. Meadows,
                 567 Pa. 344, 787 A.2d 312, 319-20
                 (2001).

           Commonwealth v. Johnson, 868 A.2d 1278, 1281
           (Pa.Super. 2005).

           Kersteter, 877 A.2d at 469-69. Moreover, trial
           counsel    is    presumed  to  be    effective.
           Commonwealth v. Carter, 540 Pa. 135, 656 A.2d
           463, 465 (1995).

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006).

     Appellant makes an undeveloped claim that Attorney Mills was

ineffective because he,

           should have been aware of the ramifications of the
           subsequent charge [of contraband] on the agreed


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             upon sentence. Had he sought to ascertain the
             effect of the subsequent charge, he could have
             exploited it into, at best, a drug program or at worst,
             the benefit of the bargaining position with regard to
             the plea bargain eventually entered into between the
             Commonwealth and [appellant.] In short, it would
             have been difficult, armed with these facts, for the
             Commonwealth to breach its agreement with
             [appellant.]

Appellant’s brief at 11-12.    This claim does not satisfy any of the three

prongs established by the Meadows court. Therefore, appellant’s claim of

ineffective assistance of counsel in regards to Attorney Mills is without merit.

      Under his third issue, appellant avers that the PCRA court abused its

discretion   by   sentencing   him   to   an   aggravated-range   sentence    of

33-66 months’ imprisonment for the PWID charge. “Issues challenging the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-

1274 (Pa.Super. 2006), quoting Commonwealth v. Tirado, 870 A.2d 362,

365 (Pa.Super. 2005) (citation omitted).

      Appellant failed to raise this issue through an objection at sentencing,

through a post-sentence motion, or on direct appeal. This issue, therefore,

is waived under the PCRA and we cannot consider it on its merits.

      In his fourth issue for our review, appellant challenges the legality of

his sentence.



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            “A challenge to the legality of a sentence . . . may be
            entertained as long as the reviewing court has
            jurisdiction.”    Commonwealth v. Borovichka,
            18 A.3d 1242, 1254 n. 8 (Pa.Super. 2011) (citation
            omitted). It is also well-established that “[i]f no
            statutory authorization exists for a particular
            sentence, that sentence is illegal and subject to
            correction.” Commonwealth v. Rivera, 95 A.3d
            913, 915 (Pa.Super. 2014) (citation omitted). “An
            illegal sentence must be vacated.” Id. “Issues
            relating to the legality of a sentence are questions of
            law[.] . . .     Our standard of review over such
            questions is de novo and our scope of review is
            plenary.” Commonwealth v. Akbar, 91 A.3d 227,
            238 (Pa.Super. 2014) (citations omitted).

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal

denied, 121 A.3d 494 (Pa. 2015).

     In the instant appeal, the Commonwealth cites 42 Pa.C.S.A. § 9721 as

the statute from which the PCRA court derived its authority to impose

appellant’s sentence.     (Commonwealth’s brief at 14.)         Section 9721

provides:

            (a)   General rule.--In determining the sentence to
                  be imposed the court shall, except as provided
                  in subsection (a.1), consider and select one or
                  more of the following alternatives, and
                  may     impose     them     consecutively    or
                  concurrently:

                  (1)   An order of probation.
                  (2)   A determination of guilt without
                        further penalty.
                  (3)   Partial confinement.
                  (4)   Total confinement.
                  (5)   A fine.
                  (6)   County intermediate punishment.
                  (7)   State intermediate punishment.



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42 Pa.C.S.A. § 9721(a) (emphasis added).        As the Commonwealth notes,

our supreme court has held that a sentencing court may “fashion a sentence

which includes one or more of five alternative punishments, and permits

these    punishments    to   be   imposed   consecutively   or   concurrently.”

Commonwealth v. Pierce, 441 A.2d 1218, 1219 (Pa. 1982), citing

Commonwealth v. Nickens, 393 A.2d 758 (Pa.Super. 1978) (en banc).5

        In the instant appeal, we find that the sentencing court acted fully

within its statutory authority when it sentenced appellant to a term of

probation consecutive to a term of imprisonment for the same offense.

Accordingly, appellant’s fourth issue is without merit.

        For his fifth and final issue on appeal, appellant avers that his PCRA

counsel, Tyree A. Blair, Esq., provided ineffective assistance for failing to

amend appellant’s PCRA petition to raise the preceding four issues.

Appellant raises this issue for the first time on appeal. Our supreme court

has stated that a failure to raise an ineffective assistance of PCRA counsel

claim before the PCRA court will result in waiver. Commonwealth v. Pitts,

981 A.2d 875, 880 n.4 (Pa. 2009). The court further stated that a petitioner

may raise such an issue in either his response to counsel’s Turner/Finley




5
   The courts in Pierce and Nickens analyzed sentencing schemes under
18 Pa.C.S.A. § 1321(a). Section 9721 of the Sentencing Code, which is at
issue in the instant appeal, is virtually identical to Section 1321, except that
it adds two alternative forms of punishment.


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no-merit letter, or in his response to the PCRA court’s Rule 907 notice of

intent to dismiss the PCRA petition.

      Here, appellant raises the issue of Attorney Blair’s alleged ineffective

assistance for the first time on appeal. Appellant failed to file any response

to Attorney Blair’s Turner/Finley no-merit letter and the PCRA court’s

Rule 907 notice of intent to dismiss his PCRA petition. We, therefore, find

appellant’s fifth issue waived for the purpose of appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/9/2016




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