J-S02026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

HAROLD BURTON,

                      Appellant                No. 469 EDA 2014


           Appeal from the PCRA Order of January 24, 2014
         In the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0005138-2010

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

HAROLD BURTON,

                      Appellant                No. 470 EDA 2014


           Appeal from the PCRA Order of January 24, 2014
         In the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0008177-2010

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

HAROLD BURTON,

                      Appellant                No. 471 EDA 2014

           Appeal from the PCRA Order of January 24, 2014
         In the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0008178-2010
J-S02026-15


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

HAROLD BURTON,

                       Appellant                  No. 472 EDA 2014


            Appeal from the PCRA Order of January 24, 2014
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0000204-2011

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

HAROLD BURTON,

                       Appellant                  No. 473 EDA 2014


            Appeal from the PCRA Order of January 24, 2014
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0000205-2011

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                    FILED FEBRUARY 10, 2015

     Appellant, Harold Burton, appeals from the order entered on January

24, 2014 denying his petition filed under the Post-Conviction Relief Act

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

     The relevant factual background of this case is as follows. During

October 2009, August 2010 (on two separate occasions), and September

2010 (on two separate occasions), Appellant possessed cocaine with the


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intent to deliver. The relevant procedural history of this case is as follows.

On August 20, 2010, Appellant was charged via criminal information at CP-

46-CR-0005138-2010 with, inter alia, possession with intent to deliver

(“PWID”).1     On December 30, 2010, Appellant was charged via criminal

informations at CP-46-CR-0008177-2010 and CP-46-CR-0008178-2010 with,

inter alia, PWID. On February 8, 2011, Appellant was charged via criminal

informations at CP-46-CR-0000204-2011 and CP-46-CR-0000205-2011 with,

inter alia, PWID.

        On March 19, 2012, Appellant proceeded to a bench trial on all five

informations. On the second day of trial, March 20, 2012, Appellant agreed

to plead guilty to all five PWID charges.     In return, the Commonwealth

agreed to recommend concurrent sentences of four to eight years’

imprisonment. Furthermore, the Commonwealth agreed to make Appellant

eligible for recidivism risk reduction incentive (“RRRI”). He was immediately

sentenced in accordance with the plea agreement.

        On July 31, 2012, Appellant filed a pro se PCRA petition. Counsel was

appointed and, on March 15, 2013, an amended PCRA petition was filed. An

evidentiary hearing was held on September 11, 2013. On January 24, 2014,

the PCRA court denied Appellant’s PCRA petition.       Appellant filed timely




1
    35 P.S. § 780-113(a)(30).


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notices of appeal at each docket number.2            This Court sua sponte

consolidated all five appeals.

      Appellant presents one issue for our review:

      Was Appellant’s trial counsel ineffective for advising the
      Appellant at his guilty plea hearing that the maximum sentence
      he could receive for each count of possession with intent to
      deliver was 20 years where the bills of information did not
      indicate that the charge was a second or subsequent offense?

Appellant’s Brief at 3 (complete capitalization removed).

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s findings of fact, and whether the PCRA

court’s determination is free of legal error.” Commonwealth v. Wantz, 84

A.3d 324, 331 (Pa. Super. 2014) (citation omitted). “The 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 trial level.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

      Appellant’s lone claim on appeal is that his trial counsel rendered

ineffective assistance. Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the petitioner suffered prejudice as a result of
      counsel’s error such that there is a reasonable probability that

2
  On February 28, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On March 18, 2014, Appellant filed his concise
statement. On June 13, 2014, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.


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     the result of the proceeding would have been different absent
     such error. Counsel is presumed to have rendered effective
     assistance.

     A court is not required to analyze the elements of an
     ineffectiveness claim in any particular order of priority; instead,
     if a claim fails under any necessary element of the
     ineffectiveness test, the court may proceed to that element first.
     Finally, counsel cannot be deemed ineffective for failing to raise
     a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

     Furthermore,

     [a]llegations of ineffectiveness in connection with the entry of a
     guilty plea will serve as a basis for relief only if the
     ineffectiveness caused [A]ppellant to enter an involuntary or
     unknowing plea. In determining whether a guilty plea was
     entered knowingly and intelligently, a reviewing court must
     review all of the circumstances surrounding the entry of that
     plea.

Commonwealth v. Fears, 86 A.3d 795, 806–807 (Pa. 2014) (citation

omitted).

     Appellant argues that his trial counsel was ineffective for advising him

that the maximum penalty for each of the five PWID charges was 20 years’

imprisonment.    Appellant argues that this was ineffective assistance

because, according to Appellant, the actual maximum was ten years’

imprisonment. The Commonwealth argues, and the PCRA court found, that

Appellant’s underlying claim is meritless because the maximum penalty was

20 years’ imprisonment.




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J-S02026-15


        An individual convicted of PWID is generally subject to a term of

imprisonment not to exceed ten years. See 35 P.S. § 780-113(f)(1.1). For

second and subsequent PWID convictions, however, the maximum term of

imprisonment is 20 years.        See id.; 35 P.S. § 780-115(a).      At the PCRA

hearing, Appellant stipulated to the fact that, prior to any of the five

incidents in question, he had been convicted of PWID. He argues, however,

that the recidivist provision of section 780-115 did not apply to him because

the Commonwealth failed to plead in the criminal informations that he had

previously been convicted of PWID.

        Appellant concedes that in Commonwealth v. Aponte, 855 A.2d 800,

812 (Pa. 2004), our Supreme Court stated that it is not necessary for the

Commonwealth to plead in the criminal information that an individual has a

prior   PWID   conviction   in   order   for   the   section   780-115   recidivism

enhancement to apply.       See also Commonwealth v. Gordon, 942 A.2d

174, 183 (Pa. 2007) (quoting Aponte with approval).              Appellant argues,

however, that our Supreme Court’s statement in Aponte was dicta and,

therefore, is not binding on this Court.

        Our Supreme Court’s statement in Aponte was not dicta.             Aponte

was a direct appeal and it is well-settled that an appellate court may raise

illegal sentence claims sua sponte. Commonwealth v. Orie Melvin, 103

A.3d 1, 52 (Pa. Super. 2014) (citations omitted). In Aponte, our Supreme

Court sua sponte considered whether the fact of a prior conviction for PWID



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must be pled in the criminal information. It held that the fact of the prior

conviction need not be pled in the criminal information.    Accordingly, our

Supreme Court’s pronouncement in Aponte was not dicta.        Appellant also

argues that Aponte was incorrectly decided; however, this Court is “bound

by holdings of the Pennsylvania Supreme Court.” Strausser Enters., Inc.

v. Segal & Morel, Inc., 89 A.3d 292, 300 (Pa. Super. 2014) (citation

omitted).

      As Appellant was subject to a maximum sentence of 20 years’

imprisonment for each PWID conviction, his trial counsel’s advice was legally

correct.    Therefore, Appellant is unable to prove the first prong of

ineffectiveness and he is not entitled to relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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