J-S77036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID ROGER PROBST,

                            Appellant                 No. 566 MDA 2016


                  Appeal from the PCRA Order March 11, 2016
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0001472-2009


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 15, 2016

        Appellant, David Roger Probst, appeals from the dismissal of his first,

timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On June 3, 2010, a jury found Appellant guilty of aggravated indecent

assault of a child, indecent assault of a child less than thirteen years of age,

and corruption of a minor.         On June 4, 2010, the Commonwealth filed a

notice that it would be seeking the mandatory minimum sentence pursuant

to 42 Pa.C.S.A. § 9718.2. On November 12, 2010, the trial court sentenced

Appellant to concurrent terms of imprisonment of not less than twenty-five

nor more than fifty years for his convictions of aggravated indecent assault
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*
    Retired Senior Judge assigned to the Superior Court.
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and indecent assault, with a consecutive term of five years’ probation for

corruption of minors. On March 21, 2011, the court denied Appellant’s post

sentence motion. This Court affirmed Appellant’s judgment of sentence on

January 16, 2013. (See Commonwealth v. Probst, 2013 WL 11289518,

at *1 (Pa. Super. filed Jan. 16, 2013)). Appellant did not seek review in our

Supreme Court.

     On January 15, 2014, Appellant filed the instant, timely pro se PCRA

petition. Appointed counsel filed an amended petition on April 22, 2014. As

aptly set forth by the PCRA court:

           [Appellant] argued [in his PCRA petition] that his trial
     counsel was ineffective because counsel failed to inform him that
     the Commonwealth would potentially seek imposition of a
     twenty-five year mandatory minimum prison sentence if he was
     found guilty at trial. [Appellant] asserted that he did not take a
     plea offer for a five-year minimum prison sentence because trial
     counsel advised him that five years was the maximum sentence.
     [Appellant] proceeded to trial, was found guilty, and received the
     twenty-five year mandatory minimum. He argued that he is
     prejudiced because trial counsel’s failure is causing him to serve
     a twenty-five year minimum sentence instead of a five-year
     minimum sentence.

           On April 10, 2015, th[e PCRA c]ourt dismissed the petition.
     In an [o]pinion filed on November 9, 2015, the Superior Court
     determined that [Appellant’s] claim [,as pleaded,] had arguable
     merit and “there was no reasonable basis for trial counsel not to
     inform [Appellant] of an applicable twenty-five year mandatory
     minimum.”     The Superior Court remanded the case for an
     evidentiary hearing [because “[t]here was no record evidence
     upon which the PCRA court could make a credibility
     determination or a factual finding regarding whether a second
     plea offer was made.”] The [C]ourt determined that whether
     [Appellant] was prejudiced “hinges upon whether the
     Commonwealth had offered a plea for a five-year sentence . . .
     or whether the only offered plea was the two-year sentence that

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       the Commonwealth rescinded.” (Id.). The [C]ourt, however,
       did not “intend to foreclose any other avenue by which
       [Appellant] may prove prejudice.” (Id. at *8 n.2). Th[e PCRA
       c]ourt held the evidentiary hearing on January 26, 2016.

(PCRA Court Opinion, 2/17/16, at 1-2) (record citations provided).               On

February 17, 2016, the PCRA court found that Appellant failed to prove that

the Commonwealth offered him a plea deal for a five-year sentence, and

that, therefore, he did not establish that he was prejudiced. The court again

denied PCRA relief.       It also denied Appellant’s motion for reconsideration.

Appellant timely appealed.1

       Appellant raises one question for our review:          “Whether a failure of

trial counsel to advise a client with no legal knowledge as to the sentencing

ramifications of foregoing a plea or [choosing] to accept an offer is

ineffective assistance of counsel[?]”          (Appellant’s Brief, at 8 (unnecessary

capitalization omitted); see also Probst, No. 657 MDA 2015, at *3).

       Our standard of review of a PCRA court’s decision is well-settled: “[A]n

appellate court reviews the PCRA court’s findings of fact to determine

whether they are supported by the record, and reviews its conclusions of law

to determine whether they are free from legal error.” Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).              “We review the
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1
  On April 29, 2016, Appellant filed a timely statement of errors complained
of on appeal pursuant to the PCRA court’s order. See Pa.R.A.P. 1925(b).
The court filed an opinion on June 9, 2016, in which it relied on the reasons
stated in its February 17, 2016 opinion. See Pa.R.A.P. 1925(a).




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PCRA court’s legal conclusions de novo.” Commonwealth v. Williams, 141

A.3d 440, 452 (Pa. 2016) (citation omitted).

            [C]ounsel is presumed effective, and to rebut that
      presumption, the PCRA petitioner must demonstrate that
      counsel’s performance was deficient and that such deficiency
      prejudiced him. Strickland v. Washington, 466 U.S. 668, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has described
      the Strickland standard as tripartite by dividing the
      performance      element   into  two    distinct    components.
      Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
      (1987). Accordingly, to prove counsel ineffective, the petitioner
      must demonstrate that (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) the petitioner was prejudiced by
      counsel’s act or omission. Id. A claim of ineffectiveness will
      be denied if the petitioner’s evidence fails to satisfy any
      one of these prongs.

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (one case

citation omitted; emphasis added).      A reviewing court is not required to

address “the elements of an ineffectiveness claim in any particular order of

priority; instead, if a claim fails under any necessary element of the [Pierce]

the court may proceed to that element first.” Commonwealth v. Lambert,

797 A.2d 232, 243 n.9 (Pa. 2001).

      In this case, we will address:

           . . . the prejudice prong[, which] hinges upon whether the
      Commonwealth had offered a plea for a five-year sentence as
      [Appellant] alleges, or whether the only offered plea was the
      two-year sentence that the Commonwealth rescinded[.] . . . If
      the Commonwealth did not offer a five-year plea, then there
      would be no offer for counsel to present to [Appellant] and to be
      accepted by the court.




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(Probst, 657 MDA 2015, at *7-8) (footnote omitted).2

       The United States Supreme Court’s decision in Lafler v. Cooper, 132

S.Ct. 1376 (2012), is relevant to the facts presented here. (See id. at *6-

7).   In Lafler, the United States Supreme Court focused on the prejudice

prong of the Strickland test where a defendant alleged that the ineffective

assistance of counsel resulted in his rejection of a plea offer.   See Lafler,

supra at 1384-85. The Court held that:

       In these circumstances a defendant must show that but for the
       ineffective advice of counsel there is a reasonable probability
       that the plea offer would have been presented to the court (i.e.,
       that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of intervening
       circumstances), that the court would have accepted its terms,
       and that the conviction or sentence, or both, under the offer’s
       terms would have been less severe than under the judgment and
       sentence that in fact were imposed.

Id. at 1385.

       Here, upon consideration of the evidence produced at the January 26,

2016 hearing, the PCRA court determined that Appellant failed to establish

prejudice since “there was never an offer that would have been presented to

the [c]ourt had [Appellant] accepted it . . . [because] the Commonwealth


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2
  Pursuant to the law of the case doctrine, “a court involved in the later
phases of a litigated matter should not reopen questions decided by another
judge of that same court . . . in the earlier phases of the matter.”
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citation
omitted).



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knew about the twenty[-]five year mandatory before trial[.]” (PCRA Ct. Op.,

at 7). We agree.

      The following pertinent evidence was produced at the January 26,

2016 hearing.      At Appellant’s preliminary hearing, the Commonwealth

offered him a plea deal of two years in exchange for his guilty plea to failure

to comply, and no contest plea to indecent assault.       (See N.T. Hearing,

1/26/16, at 6-7, 13, 16). Lycoming County District Attorney Eric Linhardt

became aware of the two-year offer on December 7, 2009, the date of

Appellant’s plea hearing, and he immediately rescinded it, “knowing that

there is a [twenty-five] year mandatory that applies.” (Id. at 47; see also

id. at 12, 16-18, 23, 33-34, 43-44, 46-48, 53).      The back of the District

Attorney’s case file contained his notes that the two-year deal was “nixed”

and that Appellant was subject to a twenty-five year mandatory sentence.

(Id. at 46; see id. at 47-48). District Attorney Linhardt maintained that he

“ha[d] no recollection of making [Appellant] any further offers and there is

nothing in the file to indicate [he] did.” (Id. at 51; see also id. at 52). He

emphasized that he would not offer Appellant a five-year plea deal when the

applicable mandatory minimum was twenty-five years because “a five year

offer in this case would have been inconsistent with how [he] would have

handled these cases at that time.” (Id. at 52).

      Conversely, Appellant maintained that trial counsel advised him that

the Commonwealth made a five-year offer after withdrawing the two-year


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deal. (See id. at 32-33, 35). However, his trial counsel testified that, “it

was just discussed at the time that [the two-year offer] was pulled[,] that

[there] might be some other type of plea that may be offered . . . .” (Id. at

19).   Counsel clarified that it was not a “subsequent offer,” but merely a

discussion. (Id. at 22; see id. at 18-19, 22-23).

       Based on the foregoing, we agree with the PCRA court that the

evidence produced at the January 26, 2016 hearing fails to establish that the

Commonwealth offered Appellant a plea deal, after it revoked the two-year

offer, that would have been presented to the trial court. See Lafler, supra

at 1385. Notably, the PCRA court found the testimony of both trial counsel

and the District Attorney credible, a finding by which we are bound. (See

PCRA Court Op., at 4); see also Williams, supra at 452 (“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.”)

(citation omitted).

       Accordingly, because there was no plea offer, Appellant has failed to

prove that he was prejudiced by counsel’s failure to advise him of the

twenty-five year mandatory minimum.3             See id.   Therefore, because

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3
 We note for completeness that this case does not implicate the holding of
Alleyne v. United States, 133 S. Ct. 2151 (2013), because the mandatory
minimum sentence imposed here pertained to Appellant’s prior conviction for
an offense under Megan’s Law.           See 42 Pa.C.S.A. § 9718.2;
Commonwealth v. Valentine, 101 A.3d 801, 809 (Pa. Super. 2014),
(Footnote Continued Next Page)


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Appellant has failed to prove the prejudice prong of the Strickland/Pierce

test, the court properly found that counsel did not provide Appellant with

ineffective assistance. See Lambert, supra at 243 n.9; Roane, supra at

88.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




                       _______________________
(Footnote Continued)

appeal denied, 124 A.3d 309 (Pa. 2015); (see also N.T. Sentencing,
11/12/10, at 37, 46).



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