Opinion
J-S70035-15 No. 1698 EDA 2014
11-20-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. EWARG LARIOS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 21, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002681-2010 BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Ewarg Larios appeals from the order of the Court of Common Pleas of Lehigh County that dismissed his petition filed pursuant to the Post Conviction Relief Act. After careful review, we affirm based on the opinion of the Honorable Maria Dantos dated July 1, 2014, which incorporated Judge Dantos' opinion dated May 21, 2014.
On November 10, 2010, after a jury convicted Larios of conspiracy to deliver cocaine and conspiracy to deliver heroin, the trial court sentenced him to an aggregate sentence of eight to twenty years' imprisonment. Larios appealed his judgment of sentence to this Court, which affirmed on October 21, 2011. Commonwealth v. Larios , 37 A.3d 1239 (Pa. Super. 2011) (unpublished memorandum). Larios then filed a petition for allowance of appeal, which our Supreme Court denied on November 28, 2012. Commonwealth v. Larios , 57 A.3d 68 (Pa. 2012).
On November 20, 2013, Larios filed a timely pro se PCRA petition. Counsel was appointed on November 27, 2013, and on January 3, 2014, counsel filed an amended petition. A hearing was held on May 1, 2014, during which Larios and his counsel, John Peter Karoly, III, Esquire, testified. The Commonwealth presented the testimony of the assistant district attorney who tried the case, Robert Rosner, Esquire.
On May 21, 2014, the PCRA court denied relief. This timely appeal followed, in which Larios raises the following issues for our review.
1. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution for Karoly's failure to file a post sentence challenge to the imposition of multiple conspiracy convictions which are barred under 18 Pa.C.S. §§ 903(c) and 906.
2. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution for Karoly's failure to properly "federalize" Larios' claims presented to the appellate courts regarding Agent Morgan's tardy disclosure of his report, which resulted in a trial by ambush in violation of Larios' due process right to a fair trial under the Fourteenth Amendment of the U.S. Constitution.
3. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution for Karoly's failure to investigate and present a defense expert to refute the Commonwealth's expert testimony of Agent Morgan.
4. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution for Karoly's failure to interview, call and present Herbert J. Larios as a defense witness?Appellant's Brief, at 4.
5. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel under the U.S. Constitution for Karoly's failure to investigate and present the business records that exonerated Larios by establishing that his finances were the result of legal business transactions and not the results of illegal drug proceeds, as the Commonwealth claimed.
6. Whether Larios was denied his Sixth Amendment right to effective assistance of counsel for Karoly's failure to object to the prosecutor's misconduct in securing a conviction through the use of perjured testimony the prosecutor knew was false.
In reviewing an appeal from the denial of PCRA relief, "our standard of review is whether the findings of the court are supported by the record and free of legal error." Commonwealth v. Martin , 5 A.3d 177, 182 (Pa. 2010) (citations omitted).
To be eligible for relief under the PCRA, Larios must prove by a preponderance of the evidence that his conviction resulted from "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." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley , 21 A.3d 1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the defendant must show that the underlying claim had arguable merit, counsel had no reasonable basis for his or her action, and counsel's action resulted in prejudice to the defendant. Commonwealth v. Prince , 719 A.2d 1086, 1089 (Pa. Super. 1998).
After careful review of the parties' briefs, the record and the relevant law, we agree with the Honorable Maria Dantos' analysis and affirm on the basis of her opinion. We instruct the parties to attach a copy of Judge Dantos' decision in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/20/2015
The Commonwealth did not file a brief. Accordingly, Larios' application to preclude the Commonwealth from filing an untimely brief is denied as moot.
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