J-S43038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MARQUIS LAFAYETTE BARNES

                           Appellant                   No. 149 WDA 2017


                Appeal from the PCRA Order December 19, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000771-2015


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

MARQUIS LAFFAYETTE BARNES

                           Appellant                   No. 150 WDA 2017


                Appeal from the PCRA Order December 19, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002708-2014

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 07, 2017

        Appellant, Marquis Lafayette1 Barnes, appeals from the order entered

in the Erie County Court of Common Pleas, which dismissed his Post


*
    Former Justice specially assigned to the Superior Court.
1
  We note that Appellant’s middle name is spelled “Laffayette” at docket
2708-14, but “Lafayette” at docket 771-15.              Notwithstanding this
discrepancy, Appellant is the same individual involved in both cases, and we
have elected to use the spelling of Appellant’s middle name listed in 771-15.
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Conviction Relief Act2 (“PCRA”) petition. Appellant’s petition raises claims of

ineffective assistance of counsel in connection with his guilty pleas to two

counts of firearms not to be carried without a license. We affirm.

        The PCRA court summarized the factual and procedural history as

follows:

                At [d]ocket [n]umber 2708 of 201[4], [Appellant] pled
           guilty on March 16, 2015, to one count of [f]irearms [n]ot
           to be [c]arried without a [l]icense.         [Appellant] was
           sentenced on July 22, 2015, by Judge Shad Connelly [] to
           30-60 months of incarceration.           [Appellant] filed a
           [m]otion for [r]econsideration/[m]odification of [s]entence
           on July 2[3],[3] 2015. The post-sentence [m]otion was
           denied by [o]rder the same date. [Appellant] did not file a
           direct appeal with [this Court]. The judgment of sentence
           became final August 2[4],[4] 201[5] when the time for
           filing a direct appeal with [this Court] expired. [Appellant]
           was represented by Attorney Michael DeJohn.

              At [d]ocket [n]umber 771 of 2015, [Appellant] pled
           guilty on September 4, 2015, to one count of [f]irearms
           [n]ot to be [c]arried without a [l]icense. [Appellant] was
           sentenced on October 19, 2015, by Judge Shad Connelly
           to 30-60 months of incarceration consecutive to the
           sentence at [d]ocket [n]umber 2708 of 2014. [Appellant]

2
    42 Pa.C.S. §§ 9541-9546.
3
 The record reveals Appellant’s post-sentence motion was filed on July 23,
2015.
4
   The thirtieth day from the July 23, 2015 judgment of sentence was
Saturday, August 22, 2015. Therefore, Appellant had until Monday, August
24, 2015, to file a timely notice of appeal. See Pa.R.A.P. 903(a) (stating
notice of appeal “shall be filed within 30 days after the entry of the order
from which the appeal is taken”); see also 1 Pa.C.S. § 1908 (excluding
weekends and holidays from the computation of time when the last day of
the time period falls on a weekend or holiday).




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        filed a [m]otion for [r]econsideration/[m]odification of
        [s]entence on October 23, 2015, seeking to have the
        sentences imposed concurrently. [Appellant] contended
        the sentences were imposed erroneously in the high end of
        the standard range of the sentencing guidelines.
        [Appellant] sought a reduction in his sentences. The post-
        sentence [m]otion was denied by [o]rder the same date.
        [Appellant] did not file a direct appeal with [this Court].
        The judgment of sentence became final November 23,
        2015, when the time for filing a direct appeal with [this
        Court] expired. [Appellant] was represented by Attorney
        Bruce Sandmeyer.

Notice of Intent to Dismiss PCRA Pet. Pursuant to Pa.R.Crim.P. 907,

11/28/16, at 1-2 (citations omitted).    On July 14, 2016, Appellant timely

filed a pro se PCRA petition at both dockets, which alleged ineffective

assistance of counsel. Through PCRA counsel, Appellant subsequently filed

an amended PCRA petition at both dockets. The PCRA court issued a Rule

907 notice of intent to dismiss without a hearing on December 19, 2016.

This timely, consolidated appeal followed.    Appellant filed a court-ordered

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

     Appellant raises the following issues for our review:

        I. Whether the sentencing [c]ourt abused its discretion in
        that the Honorable Shad Connelly used open cases as
        explicit factors for purposes of fashioning the sentencing
        scheme for the instant cases prior to the final adjudication
        and disposition of the other unrelated cases?

        II. Whether defense counsel was ineffective in failing to file
        a supplementary reconsideration based on new evidence or
        circumstances wherein one of the referenced open cases
        used by the sentencing [c]ourt was dismissed at the
        magisterial level thereby expunging any legal relevance or
        basis for use of that case as a sentencing factor for the
        instant cases?


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         III. Whether [Appellant] was afforded ineffective
         assistance of counsel during the pre-trial stage wherein
         Attorney [Michael] DeJohn advised [Appellant] to take a
         plea under false pretenses given that counsel informed him
         that if he pled guilty he would receive [twelve] to [twenty-
         four] months or [eighteen] to [thirty-six] months
         [maximum] whereas [Appellant] ultimately received a
         sentence of [thirty] to [sixty] months?

         IV. Whether defense counsel was ineffective in failing to
         independently take an appeal to challenge what amounted
         to a deficient plea colloquy?

         V. Whether [Appellant] was afforded ineffective assistance
         of counsel in that counsel failed to file a motion seeking to
         have the two dockets merged for purposes of sentencing,
         which failure resulted in [Appellant] being exposed to a
         longer term of incarceration due to the consecutive nature
         of the sentencing scheme employed by the sentencing
         [c]ourt?

Appellant’s Brief at 2.5

      Appellant first contends that plea counsel was ineffective for failing to

argue that the sentencing court abused its discretion by using Appellant’s

pending charges as sentencing factors, and for failing to file a motion for

reconsideration after one of the pending charges was dismissed. Appellant

asserts that he suffered prejudice as a result of counsel’s inaction because

“[i]n the absence of the dismissed case, the sentencing [c]ourt failed to

articulate sufficient grounds for the sentencing election.” Id. at 7.




5
 These issues appear to relate only to Appellant’s sentence at docket 2708-
2014.



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     “[W]e 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. Roane, 142 A.3d 79, 86 (Pa. Super. 2016) (citation and

quotation marks omitted). Further,

        [c]ounsel is presumed effective, and in order to overcome
        that presumption a PCRA petitioner must plead and prove
        that: (1) the legal claim underlying the ineffectiveness
        claim has arguable merit; (2) counsel’s action or inaction
        lacked any reasonable basis designed to effectuate
        petitioner’s interest; and (3) counsel’s action or inaction
        resulted in prejudice to petitioner.         With regard to
        reasonable basis, the PCRA court does not question
        whether there were other more logical courses of action
        which counsel could have pursued; rather, the court must
        examine whether counsel’s decisions had any reasonable
        basis.    Where matters of strategy and tactics are
        concerned, a finding that a chosen strategy lacked a
        reasonable basis is not warranted unless it can be
        concluded that an alternative not chosen offered a
        potential for success substantially greater than the course
        actually pursued. To demonstrate prejudice, a petitioner
        must show that there is a reasonable probability that, but
        for counsel’s actions or inactions, the result of the
        proceeding would have been different. Failure to establish
        any prong of [this] test will defeat an ineffectiveness claim.

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations,

footnote, quotation marks, and punctuation omitted).

     Addressing Appellant’s first issue, we explained in Commonwealth v.

Thomas, 483 A.2d 974 (Pa. Super. 1984):

           [A] sentencing court [can] consider as prior criminal
           record the arrests of defendant, whatever the
           outcome, that took place prior to the day of
           sentencing. However, [] a reference to an arrest
           may not be ambiguous, i.e. it may not be mistaken
           for a conviction. Therefore, [we] place[] upon the


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           sentencing judge the requisite of using         sound
           judgment in making use of the reference.

                                  ***
        The most important prerequisite to consideration of any
        past acts of a defendant [is] that the judge fully
        under[stand] the status and disposition of charges brought
        against a defendant so as not to confuse a conviction with
        an arrest or a judgment of sentence imposed with a
        conviction. This prerequisite is satisfied to the fullest
        extent possible where the sentencing judge interposes on
        the record his understanding of the current status of such
        charges.

Id. at 979 (citations, quotation marks, and emphasis omitted).

     Here, in compliance with Thomas, the sentencing judge stated the

status of each of Appellant’s pending charges:

           The [c]ourt also notes that since this offense you have
        been involved in further charges on a number of occasions.
        You have a number of pending driving while operating
        privilege is suspended or revoked at the District Justice.
        But what is of note to the [c]ourt is that after this offense
        occurred, you have been charged with, but not convicted
        of, a drug violation for possession of marijuana and
        paraphernalia and are awaiting a preliminary hearing.

           You have been charged with a second drug violation,
        possession of marijuana and paraphernalia as well as
        driving while operating privilege is suspended or revoked,
        and that is awaiting a preliminary hearing.

           You have been charged with retaliation against a
        witness or victim, a felony, as well as simple assault, two
        counts, and terroristic threats. That offense is awaiting a
        preliminary hearing.

            And you have been charged with receiving stolen
        property and another firearms not to be carried without a
        license, as well as the disorderly conduct. Those charges
        have been bound over to court and you’re scheduled for
        trial in September.


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            So although you have not been convicted of subsequent
         offenses, it appears that there is at least probable cause
         and/or prima facie evidence that you have engaged in
         criminal activity since this offense has occurred and that
         indicates to the [c]ourt that you are still a person of
         concern in terms of your activity in the community and the
         seriousness of your behavior.


N.T. Sentencing, 7/22/15, at 8-9.        The sentencing court used “sound

judgment” by recognizing that Appellant was not convicted of any of these

charges. See Thomas, 483 A.2d at 979. Therefore, there is no arguable

merit to Appellant’s first claim of ineffective assistance.   See Mason, 130

A.3d at 618.

      As to Appellant’s second issue, his brief does not state which of the

aforementioned charges was dismissed.6       In any event, even though one

charge was dismissed, the remaining charges gave the court good reason to

believe that Appellant posed a threat to the community.             See N.T.

Sentencing at 8-9.     Accordingly, Appellant’s second claim of ineffective

assistance fails. See Mason, 130 A.3d at 618.

      Next, Appellant argues counsel was ineffective for deceiving Appellant

into believing he would receive a shorter sentence if he pled guilty.    We



6
  Appellant’s PCRA petition states that the charge at docket MJ-0613-CR-
0000169 was dismissed; however, the sentencing court did not reference
the docket numbers of Appellant’s pending charges. Therefore, it is unclear
which pending charge considered by the sentencing court was subsequently
dismissed.




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disagree based on the reasoning in Commonwealth v. Cappelli, 489 A.2d

813 (Pa. Super. 1985) (en banc). The defendant in Cappelli filed a motion

to withdraw his guilty plea, claiming “[counsel] had indicated, prior to the

entry of the guilty plea that [the defendant] would receive a sentence which

was considerably less than the sentence actually received.”          Id. at 814

(quotation marks omitted).       The trial court denied the motion without a

hearing, and the defendant appealed. Id. at 815.

        We noted that during the oral guilty plea colloquy, the defendant

contradicted his assertion that counsel induced him to enter the guilty plea

on the basis of a lesser sentence.7        Id. at 817.   We stated: “[e]ven if

evidence of such sentence promises were received, they would be of no avail

since this evidence could not be heard to contradict the incontrovertible

terms of the record plea.” Id. at 819 (citations omitted). Accordingly, we




7
    In Cappelli, the relevant part of the colloquy was as follows:

           [The defendant’s counsel]: And [] you have not received
           any promise for sentence in exchange for entering [the
           guilty plea] except that which was read into the record at
           the beginning of the proceedings. Do you understand
           that?

           [The defendant]: Yes.

Cappelli, 489 A.2d at 817.




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rejected the defendant’s claim that counsel was ineffective for promising the

defendant a lesser sentence. Id.

       Here, Appellant signed a written guilty plea colloquy, which stated, in

relevant part: “I understand that any plea bargain in my case is set forth

here and that there has been no other bargain and no other promise

or threat of any kind to induce me to plead guilty/no contest . . . .”

Written Plea Colloquy, 3/16/15, at 1. Therefore, as in Cappelli, the record

belies Appellant’s assertion that counsel’s representation regarding the

length of sentence caused him to plead guilty.        See Capelli, 489 A.2d at

819.

       Further, Appellant argues counsel was ineffective for failing to

challenge deficiencies in his guilty plea colloquy.

            A valid plea colloquy must delve into six areas: 1) the
         nature of the charges, 2) the factual basis for the plea, 3)
         the right to a jury trial, 4) the presumption of innocence,
         5) the sentencing ranges, and 6) the plea court’s power to
         deviate from any recommended sentence.

                                       ***

            While the Court has admonished that a complete
            failure to inquire into any one of the six, mandatory
            subjects generally requires reversal, . . . in
            determining the availability of a remedy in the event
            of a deficient colloquy, it has in more recent cases
            moved to a more general assessment of the
            knowing, voluntary, and intelligent character of the
            plea, considered on the totality of the circumstances.

Commonwealth v. Morrison, 878 A.2d 102, 107, 108, 109 (Pa. Super.

2005) (en banc) (citations and punctuation omitted) (determining plea


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court’s failure to outline elements of defendant’s crimes was not fatal to plea

where defendant signed document admitting he was advised and given

details on elements of offenses).

      Here, not only does Appellant fail to identify which of the above six

elements was lacking, but the record reflects that the plea court addressed

all elements during Appellant’s oral plea colloquy. See N.T. Plea, 3/16/15,

at 3-4, 7. Appellant also signed a written plea colloquy, which outlined the

rights he was giving up by entering a guilty plea. Therefore, the totality of

the   circumstances   indicates   that   Appellant’s   plea   was   knowing   and

intelligent. See Morrison, 878 A.2d at 107, 108, 109.

      Finally, Appellant argues counsel was ineffective for failing to seek the

merger of dockets 2708-2014 and 771-2015 for sentencing purposes.

Issues related to merger raise questions of law; therefore, our scope of

review is plenary and our standard or review is de novo. Commonwealth

v. Williams, 920 A.2d 887, 888-89 (Pa. Super. 2007). Merger is permitted

only where: “1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833

(Pa. 2009); see also 42 Pa.C.S. § 9765.

      While Appellant was charged with the same offense at docket 2708

and 771, they result from two separate episodes taking place in August 2014




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and January 2015, respectively.     Merger was impermissible because the

crimes did not arise from a single criminal act. See id.

      For these reasons, the PCRA court properly dismissed Appellant’s

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2017




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