Opinion
J-S35010-17 No. 1421 WDA 2016
08-11-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSHUA BURNS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 6, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0002024-2015 BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
Joshua Burns appeals from the order, entered in the Court of Common Pleas of Cambria County, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm based on the well-reasoned opinion of the Honorable Norman A. Krumenacker, III, P.J.
We adopt the facts set forth by the PCRA court's Pa.R.A.P. 1925(b) opinion. On January 25, 2016, Burns pleaded guilty to Possession, Manufacture, Delivery, and Possession With and Intent to Distribute (heroin), after which the trial court sentenced him to 14 to 72 months' imprisonment in a state correctional facility. Burns filed a pro se timely post-trial motion for reconsideration of sentence; however, this motion was never ruled on, as it was never presented to the trial court. On April 7, 2016, Burns filed a timely PCRA petition. Following a hearing held on August 1, 2016, the court dismissed the petition in an order and opinion dated September 6, 2016. The instant timely appeal follows, in which Burns raises the following issue:
Was trial counsel ineffective in supplying incorrect information as to the recommended sentencing guidelines Burns would be receiving if he entered a plea and/or in failing to file a meritorious post-sentence motion to correct the mistake?Brief of Appellant, at 4.
In reviewing an order denying PCRA relief, our standard of review is "whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Johnston , 42 A.3d 1120, 1126 (Pa. Super. 2012) (internal citation omitted).
The governing legal standard of review of ineffective assistance of counsel claims is well settled:
[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. This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. 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. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs. Furthermore, "[i]n accord with these well-established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the Pierce test." (citations omitted).Commonwealth v. Roane , 142 A.3d 79, 88 (Pa. Super. 2016) (internal citations omitted).
Strickland v. Washington , 466 U.S. 668 (1984).
The PCRA correctly determined that (1) Burns entered a knowing and voluntary guilty plea, (2) Burns' trial counsel, Maribeth Schaffer, Esquire, did not provide him incorrect information as to the sentencing guidelines, and (3) Attorney Schaffer was not ineffective for failing to file a post-sentence motion for sentence modification. Roane , supra. Accordingly, Judge Krumenacker properly dismissed Burns' PCRA petition pursuant to Pa.R.Crim.P. 907.
After reviewing the parties' briefs, the record, and the relevant case law, we conclude that Judge Krumenacker's well-reasoned opinion thoroughly and properly disposes of the question of ineffective assistance of counsel. Accordingly, we affirm on the basis of the PCRA Court's opinion, which counsel should attach in the event of further proceedings.
Order Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2017
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