J-S23002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN HAMILTON,

                            Appellant                 No. 3533 EDA 2014


                Appeal from the PCRA Order November 21, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division, at No(s): CP-51-CR-0010189-2007


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                                FILED MAY 02, 2016

        Brian Hamilton appeals pro se from the order dismissing his petition

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

9541-9546. We affirm.

        On June 18, 2007, Appellant and another man robbed a local

convenience store while holding the store’s three employees at gunpoint.

After a bench trial, the court convicted him of three counts of robbery and

related charges. On February 18, 2009, the trial court sentenced him to an

aggregate term of fifteen to thirty years of incarceration, followed by a ten-

year probationary term. Appellant filed neither a post-sentence motion nor a

direct appeal.
____________________________________________



    Former Justice specially assigned to the Superior Court.
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      The PCRA court summarized the subsequent procedural history as

follows:

             [Appellant] filed a timely pro se [PCRA petition] on August
      6, 2009. [Appellant specifically requested reinstatement of his
      direct appellate rights on the grounds that prior counsel failed to
      file an appeal on his behalf. This petition, however, did not
      reference a post-sentence motion or indicate that Appellant
      requested one be filed on his behalf.] After counsel was
      appointed, the petition was amended on January 20, 2010 and
      August 19, 2010. On September 10, 2010 this court granted
      [Appellant’s] request and reinstated his appellate rights nunc pro
      tunc. Thereafter, [Appellant] filed a Notice of Appeal on
      September 22, 2010. On September 23, 2010, [Appellant] was
      ordered to file a Statement of Matters Complained of on Appeal
      in accordance with [Pa.R.A.P.] 1925(b). On September 15, 2010,
      this court permitted PCRA counsel to withdraw and [new
      counsel] entered his appearance on September 16, 2010 and
      filed [the Rule 1925(b)] statement on September 30, 2010. This
      court filed its opinion on January 11, 2011. On January 3,
      2012[,] the Superior Court dismissed [Appellant’s] appeal after
      finding that he failed to preserve a challenge to the discretionary
      aspects of his sentence because he did not request
      reinstatement of his right to file a post-sentence motion. [See
      Commonwealth v. Hamilton, No. 2699 EDA 2010 (Pa. Super.,
      filed January 3, 2012) (unpublished memorandum)]

             On March 1, 2012, [Appellant] filed his second PCRA
      petition pro se and later filed an amended petition on January
      11, 2013. [PCRA counsel] was appointed on January 10, 2013
      and filed an amended petition [on] January 8, 2014. On April 28,
      2014 the Commonwealth filed a Motion to Dismiss [Appellant’s]
      PCRA petition. On June 15, 2014 [Appellant] filed a Motion for
      Removal of Counsel, which was denied on June 27, 2014. On
      that same day, this court issued notice of its intent to dismiss
      the petition. On August 15, 2014, after conducting a Grazier
      hearing, this court granted [Appellant’s] request to represent
      himself and permitted counsel to withdraw. [Appellant] again
      amended his petition on October 15, 2014 and later
      supplemented it on November 18, 2014. On November 21, 2014
      the petition was formally dismissed by this court. [Appellant]
      filed the instant Notice of Appeal on December 2, 2014.


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PCRA Court Opinion, 6/26/15, 2-3 (footnotes omitted).

     Appellant raises the following issues.

     1. Was Trial Counsel ineffective for abandoning [Appellant] and
        forfeiting [Appellant’s] post sentencing rights without
        informing [Appellant]?

     2. Was Appellate Counsel ineffective for failing to properly
        preserve the issue when counsel had the chance to do so?

     3. Should Appellant’s post-sentencing rights be reinstated and
        sentence vacated and remanded for a new sentencing
        hearing?

Appellant’s Brief at 7 (unnumbered). We will address Appellant’s claims

together.

     In reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.

See Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002). We

pay great deference to the findings of the PCRA court and will not disturb

these findings unless they have no support in the certified record. See id.

Furthermore, to be entitled to relief under the PCRA, the petitioner must

plead and prove by a preponderance of the evidence that the conviction or

sentence arose from one or more of the errors enumerated in section

9543(a)(2) of the PCRA. One such error involves the ineffective assistance of

counsel.

     To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence


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that counsel's ineffectiveness so undermined the truth-determining process

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

See Payne, 794 A.2d at 905. Because Appellant’s claims challenge the

stewardship of prior counsel, we apply the following principles.

      Counsel is presumed to be effective, and Appellant has the burden of

proving otherwise. See Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.

Super. 2004).

             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. 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. The petitioner bears the
      burden of proving all three prongs of the test.

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

(citations omitted).

      In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met. See Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel is not ineffective for failing to pursue a meritless claim. See

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).




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      In essence, Appellant asserts that the PCRA court erred in denying his

claim that trial counsel was ineffective for failing to preserve a discretionary

aspects claim via the filing of a post-sentence motion, and that subsequent

counsel was ineffective for failing to seek reinstatement of his right to file a

post-sentence motion once his appellate rights were reinstated nunc pro

tunc. We agree with the PCRA court’s conclusion that Appellant has failed to

establish any of the prongs of the tripartite ineffectiveness test.

      Before dismissing Appellant’s direct appeal and affirming his judgment

of sentence, a panel of this Court explained that

      [a]fter sentence was pronounced, [Appellant] was specifically
      told he had the option to file a motion for reconsideration of
      sentence within ten days and/or file an appeal within 30 days.
      Counsel told [Appellant] to contact him if he wanted to file
      either.

             Neither a motion for reconsideration nor an appeal was
      filed. [Appellant] filed a timely PCRA petition specifically claiming
      he had instructed counsel to file a direct appeal, but counsel had
      not. He sought reinstatement of direct appeal rights. His PCRA
      petition made no mention of seeking a modified sentence.
      Counsel was appointed and an amended petition was filed listing
      several issues, including, for the first time, a claim that his
      sentence was unreasonable.

                                      ***

            A challenge to the discretionary aspects of sentence may
      be raised nunc pro tunc, if the petitioner seeks reinstatement of
      his post-sentence rights rather than solely his right to direct
      appeal. See Commonwealth v. Fransen, 986 A.2d 154 (Pa.
      Super. 2009). If, however, post-sentence rights are not
      specifically requested and granted, the petitioner is left unable to
      challenge the discretionary aspects of his sentence. Id. at 156.




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Hamilton, No. 2699 EDA 2010 at 2-3 (footnote omitted). We then

concluded that because Appellant had not requested the reinstatement of his

right to file a post-sentence motion, he could not raise his discretionary

aspect of sentence claim on appeal. See id. at 4.

         The   record   flatly   refutes       Appellant’s   claim   of   trial   counsel

abandonment. Therefore, Appellant’s claim of trial counsel abandonment

fails.

         Appellant next claims that appellate counsel, John Cotter, Esquire, was

ineffective for not seeking to reinstate the right to file a post-sentence

motion. Appellant impugns the wrong counsel. Attorney Cotter, acting as

appellate counsel, could not request the right to file a post-sentence motion.

That request would have had to have been made by Appellant’s initial PCRA

counsel, Richard Moore, Esquire. Attorney Cotter had to play the hand he

was dealt, so to speak, on appeal. He rendered no ineffective assistance of

counsel in this regard, as he was in no position, at that procedural point in

the proceedings, to request reinstatement of the right to file a post-sentence

motion. Accordingly, Appellant’s claim regarding appellate counsel fails.

         Within his appellate brief, Appellant offers no reasons to disturb the

PCRA court’s conclusions.1 Thus, he is not entitled to post-conviction relief.

We therefore affirm the PCRA court’s order denying his PCRA petition.

____________________________________________


1
 We further note that Appellant is unable to challenge the application of the
mandatory minimum pursuant to 42 Pa.C.S.A. section 9712, because his
(Footnote Continued Next Page)


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      Order affirmed.

      Justice Fitzgerald joins the memorandum.

      Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




                       _______________________
(Footnote Continued)

judgment of sentence came before Alleyne v. United States, 133 S.Ct.
2151 (2013) was decided. See generally Commonwealth v. Miller, 102
A.3d 988 (Pa. Super. 2014).




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