J-S08035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EVAN CHARLES SANTUCCI,                     :
                                               :
                       Appellant               :      No. 1126 WDA 2019

               Appeal from the PCRA Order Entered July 22, 2019
               in the Court of Common Pleas of Somerset County
              Criminal Division at No(s): CP-56-CR-0000854-2017

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 24, 2020

        Evan Charles Santucci (“Santucci”) appeals from the Order dismissing

his first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        Santucci was represented by Stephen Miller, Esquire (“Attorney Miller”),

who negotiated a plea agreement with the Commonwealth whereby Santucci

agreed to waive his preliminary hearing, plead guilty to Receiving Stolen

Property (“RSP”), a third-degree felony,2 and testify against his co-defendant.

In exchange, the Commonwealth agreed to withdraw all remaining charges,

consent to unsecured bail, and not object to a defense request for the


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. § 3925(a).
J-S08035-20



imposition of the sentence concurrently with Santucci’s pending sentence in

Blair County.3 In accordance with the plea agreement, Santucci waived his

preliminary hearing, and his bail was modified to unsecured.

       On April 25, 2018, Santucci pled guilty to RSP, a third-degree felony.

Sentencing was deferred until July 10, 2018, where Santucci was sentenced

to 12 to 36 months in prison, to be served consecutively to his state parole

revocation sentence.4        At the sentencing hearing, Attorney Miller did not

mention or request a concurrent sentence.         Santucci filed a timely post-

sentence Motion on July 20, 2018, requesting that the trial court modify his

sentence in accordance with the Commonwealth’s agreement to not object to

concurrent sentences.        The trial court did not rule on the post-sentence

Motion.

       Santucci did not file a direct appeal and, instead, proceeded to file a pro

se PCRA Petition on December 3, 2018. Santucci alleged that Attorney Miller




____________________________________________


3 Santucci had a separate, unrelated, case in Blair County, and the parties
anticipated Santucci being sentenced in Blair County prior to being sentenced
in the instant case.

4 At the time of sentencing on the instant case, Santucci was serving a
sentence on a parole revocation that was unrelated to either the instant case,
or his pending Blair County sentence.


                                           -2-
J-S08035-20



had improperly induced him to plead guilty.5       Santucci was subsequently

appointed counsel, Megan Will, Esquire (“Attorney Will”), who filed an

Amended PCRA Petition. The PCRA court conducted an evidentiary hearing,

after which it dismissed Santucci’s PCRA Petition.      Santucci filed a timely

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

       On appeal, Santucci raises the following question for our review:




____________________________________________


5 In its Opinion, the PCRA court stated that the trial court had denied
Santucci’s post-sentence Motion. See PCRA Court Opinion, 11/22/19, at 3.
However, the record is devoid of any such order, written or otherwise, and
therefore we conclude that the trial court intended to deny Santucci’s post-
sentence Motion by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(a)
(providing “the judge shall decide the post-sentence motion … within 120 days
of the filing of the motion. If the judge fails to decide the motion within 120
days … the motion shall be deemed denied by operation of law.”); see also
Pa.R.Crim.P. 720(B)(3)(c) (stating, “[w]hen a post-sentence motion is denied
by operation of law, the clerk of courts shall forthwith enter an order of behalf
of the court.”). However, no such order was entered by the clerk of courts.
       We note that if the clerk of courts had properly denied Santucci’s post-
sentence Motion by operation of law, the denial should have been docketed
on November 19, 2018. Thereafter, Santucci would have had until December
19, 2018, to file a direct appeal. Santucci filed his pro se PCRA Petition on
December 3, 2018. Thus, Santucci’s pro se PCRA Petition was filed before his
judgment of sentence became final.
       Nevertheless, we perceive no error in the PCRA court entertaining the
Petition because Santucci never pursued a direct appeal.                      Cf.
Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super. 2000) (stating that the
PCRA court should have dismissed petition without prejudice as premature
given pendency of direct appeal). Additionally, none of Santucci’s claims in
his pro se PCRA Petition, nor his Amended PCRA Petition, request or require a
direct appeal. Notably, Santucci’s only claims allege ineffective assistance of
counsel, a claim which may only be raised under the PCRA, and which we
discuss infra. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

                                           -3-
J-S08035-20


       Whether the [PCRA] [c]ourt erred in dismissing [Santucci]’s
       [A]mended [PCRA] [P]etition by finding [Santucci] did not prove
       his claim of ineffective assistance of counsel[?]

Brief for Appellant at 5.

       “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

from legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017). “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.” Id. (citation omitted).

       To prevail on a claim of ineffective assistance of counsel under the PCRA,

a petitioner must plead and prove, by a preponderance of the evidence, that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”        42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish that “the

underlying claim has arguable merit; second, that counsel had no reasonable

basis for his action or inaction; and third, that [the a]ppellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A

PCRA    petitioner   must   address   each    of   these   prongs   on   appeal.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).

       Santucci argues that Attorney Miller was ineffective because Attorney

Miller failed to advise the trial court about the Commonwealth’s agreement

not to object to a defense request for concurrent sentences. See Brief for

Appellant at 10-12, 14-15. Santucci contends that his sentence would have




                                      -4-
J-S08035-20



been eligible to run concurrently with his pending sentence in Blair County.

Id. at 14.

      Here, Santucci fails to develop any of the prongs of an ineffectiveness

claim. See Wholaver, supra. Moreover, as noted by the PCRA court in its

Opinion, and conceded by Santucci in his brief, it was impossible for the trial

court to run Santucci’s sentence concurrently with the parole revocation

sentence.     See   PCRA    Court   Opinion,   11/22/19,   at   5;   see   also

Commonwealth v. Kelley, 136 A.3d 1007, 1013-14 (Pa. Super. 2016)

(stating that a sentence imposed concurrent with a parolee’s backtime on the

original state sentence is an illegal sentence); 61 Pa.C.S.A. § 6138(a)(5)(i)

(providing that “[i]f a new sentence is imposed on the parolee, the service of

the balance of the term originally imposed … shall precede the commencement

of the new term imposed.”). Additionally, despite Santucci’s argument that

his Blair County sentence would have been eligible for a concurrent sentence,

the trial court could not have granted him such a sentence as Blair County

had not yet sentenced him. See Commonwealth v. Dorian, 460 A.2d 1121,

1122 (Pa. Super. 1983) (stating that the sentencing court has authority to

order a sentence to run concurrently with a previously imposed sentence);

see also Pa.R.Crim.P. 705(b) (providing that “when a sentence is imposed on

a defendant who is sentenced for another offense, the judge shall state

whether the sentences shall run concurrently or consecutively.”). Because

Santucci’s claim lacks arguable merit, his ineffectiveness claim fails on this

basis, as well. See Charleston, supra.

                                     -5-
J-S08035-20



      Santucci also argues, specifically, that by failing to file a pre-trial motion

“alerting the [trial c]ourt to the proffered plea agreement,” Attorney Miller

rendered ineffective assistance of counsel. Brief for Appellant at 15. Santucci

fails to adequately develop this claim as well. See Wholaver, supra. For

the reasons stated above, Santucci’s underlying claim lacks arguable merit.

See Kelley, supra; see also Dorian, supra.

      Santucci also, more generally, argues that Attorney Miller rendered

ineffective assistance of counsel by failing to file any pre-trial motions. Brief

for Appellant at 15. Santucci claims that Attorney Miller’s failure to file “any

pre-trial motions” has “prejudiced him greatly.” Id.

      However, Santucci fails to adequately develop this claim.                See

Wholaver, supra.       In particular, Santucci does not identify the specific

motions that Attorney Miller should have filed, nor does he explain how or why

any pre-trial motions would have been meritorious. Therefore, in the absence

of specific pre-trial motions that could have been filed, and any discussion

regarding why Santucci believes that those motions would have been

meritorious, we find no basis upon which to conclude that Attorney Miller was

ineffective.

      Finally, Santucci claims that Attorney Miller was ineffective in counseling

him to waive his preliminary hearing.            Brief for Appellant at 10-13.

Specifically, Santucci claims he only “agreed to waive his preliminary …

hearing on the advice of Attorney Miller,” where Attorney Miller was

attempting to “foster goodwill with the Commonwealth.” Id. at 13.

                                       -6-
J-S08035-20



      An attorney and his client may “waive[] the preliminary hearing in

exchange for a quid pro quo benefit, such as a reduction in bail or

withdrawal of charges….” Pa.R.Crim.P. 541(A)(1), Cmt. (emphasis added).

Santucci fails to demonstrate that Attorney Miller lacked a reasonable basis to

recommend waiving his preliminary hearing.          See Commonwealth v.

Sandusky, 203 A.3d 1033, 1085 (Pa. Super. 2019) (stating that waiving the

preliminary hearing in order to avoid incarceration can constitute a reasonable

basis). Moreover, Santucci fails to demonstrate how he was prejudiced by the

waiver of his preliminary hearing. See id. (stating that a bald assertion that

the hearing could have provided additional impeachment evidence is not

enough to demonstrate prejudice); see also Commonwealth v. McBride,

570 A.2d 539, 540-41 (Pa. Super. 1990) (stating that an appellant fails to

show that waiver of the preliminary hearing establishes specific prejudice

where the appellant’s only contention is that “his defense was hampered

because he had not previously heard the Commonwealth’s witnesses

testify.”).

      It is clear from the record that Santucci actually benefited from the

waiver of his preliminary hearing because the Commonwealth withdrew three

other charges graded as either first-degree felonies or second-degree felonies,

and Santucci’s bail was modified to unsecured. See Pa.R.Crim.P. 541(A)(1),

Cmt. Therefore, in the absence of more specific and developed averments of

prejudice, we find no basis upon which to conclude that Attorney Miller was

ineffective.

                                     -7-
J-S08035-20



      Based upon the foregoing, we conclude that the PCRA court did not

abuse its discretion in dismissing Santucci’s PCRA Petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2020




                                     -8-
