J-S61006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF IN THE SUPERIOR COURT OF PENNSYLVANIA PENNSYLVANIA
Appellee
v.
HERMAN CAVE
Appellant No. 451 EDA 2017
Appeal from the PCRA Order January 9, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002184-2006, CP-46-CR-0005508-2013, CP-46-CR-0005689-2014
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 06, 2017
Herman Cave appeals from the order entered in the Court of Common
Pleas of Montgomery County dismissing his Post-Conviction Relief Act1
(“PCRA”) petition. After review, we affirm.
Cave pled guilty to aggravated assault2 after he shot Raheem Jones-
Gant during a robbery. At the time of the shooting, Cave was on both
probation and parole due to prior convictions for possession with intent to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. § 9541 et seq.
2 18 Pa.C.S. § 2702. J-S61006-17
distribute3 (convicted 2013) and robbery4 (convicted 2006). In exchange for
his guilty plea, the Commonwealth agreed to nolle pros thirty additional
charges arising from the same incident, to seek a lesser sentence than the
statutory maximum, and to decline the application of sentencing
enhancements to Cave’s sentence.
After Cave pled guilty, he was sentenced to six to twelve years’
incarceration for the aggravated assault charge, four to eight years’
incarceration for the probation and parole violations of the prior possession
conviction, and six to twelve years’ incarceration for the probation and parole
violations of the robbery conviction. Each sentence ran concurrently from July
21, 2014, the date of Cave’s arrest, which resulted in an aggregate sentence
of six to twelve years’ incarceration.
Cave did not file a direct appeal, but instead filed a timely pro se PCRA
petition on April 5, 2016. In response, the PCRA court appointed counsel,
Bonnie-Anne Brill Keagy, Esquire, to assist with Cave’s PCRA petition.
However, after several months of investigation, Attorney Keagy filed a detailed
Turner5/Finley6 no-merit letter on October 4, 2016 and was permitted to
withdraw from representation. Judge Furber issued a Pa.R.Crim.P. 907 notice
3 CP-46-CR-0005508-13
4 CP-46-CR-0002184-06
5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
6 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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of intent to dismiss on October 5, 2016, and Cave filed his pro se response to
that notice on December 19, 2016. Cave’s PCRA petition was dismissed on
January 9, 2017, and Cave filed this timely pro se appeal.
In his appeal, Cave raises five issues, several of which are related. First,
he argues that the PCRA court erred in dismissing his PCRA petition without a
hearing, because he believes his claims have merit. Second, Cave argues that
his trial counsel was ineffective for advising him to enter a guilty plea, and
that his PCRA counsel was ineffective, in essence, for withdrawing from
representation. Third, Cave argues that the negotiated sentence imposed
pursuant to his guilty plea was illegal. Fourth, Cave argues that, in light of
the alleged illegality of the sentence and the ineffectiveness of his counsel, his
constitutional rights were violated. Fifth, Cave combines the above arguments
to reiterate that his counsel was ineffective, that his sentence was illegal, and
that he was misinformed as to the nature of his plea. Each of these arguments
is meritless, and we affirm the PCRA court’s dismissal.
When reviewing an order denying PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and is free of legal
error. Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). The
PCRA court is justified in dismissing a petition without an evidentiary hearing
when, after review, “the judge is satisfied from this review that there are no
genuine issues concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907. An evidentiary hearing is not
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a matter of right, and a petitioner must raise an issue of fact to justify such a
hearing. Commonwealth v. Keaton, 45 A.3d 1050 (Pa. Super. 2012). Here,
Cave raised no such issues of fact, and thus the PCRA court’s dismissal was
not in error.
Attorney Keagy’s no-merit letter provided a detailed and well-reasoned
analysis of the reasons why Cave’s PCRA petition was meritless. As both she
and Judge Furber explained, Cave’s guilty plea limited his avenues for appeal,
and Cave’s petition failed to raise an issue which would merit PCRA relief.
Dismissal without hearing was proper, and Cave’s first claim warrants no
relief.
Regarding Cave’s second issue, ineffective assistance of counsel, the
PCRA court committed no error in dismissing Cave’s petition. To be entitled
to relief for ineffective assistance of counsel, a PCRA petitioner must establish
that: 1) the underlying claim has merit; 2) there was no reasonable basis for
counsel’s action or failure to act; and 3) but for the counsel’s course of
conduct, there is a “reasonable probability the result of the proceeding would
have been different.” Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa.
2015). Failure to satisfy any of the three prongs is fatal to a claim of
ineffective assistance of counsel. Commonwealth v. Pond, 846 A.2d 669
(Pa. Super. 2004). Counsel is presumed to provide effective assistance, and
it is solely the petitioner’s burden to establish ineffectiveness.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
-4- J-S61006-17
Cave argues that his counsel at all stages has been ineffective, both at
trial and at the PCRA level. This claim is underdeveloped on appeal, but to
the extent that a cognizable claim can be discerned, said claim depends on
Cave being dissatisfied with the explanation he received regarding the
consequences of his guilty plea. More specifically, Cave believes that he was
misled regarding the sentencing guidelines which would apply to his probation
and parole violations, and that the sentences imposed were more severe than
he had anticipated. This, in Cave’s eyes, warrants a finding of ineffective
assistance by his trial counsel.
However, the record does not reveal any way in which Cave was misled
or misinformed, and Cave intelligently signed the guilty plea colloquy and
confirmed his understanding on the record. N.T. Guilty Plea Hearing,
12/15/2015, at 6-8. The colloquy itself was fully compliant with Pa.R.Crim.P.
590 and it sufficiently described the nature of the plea and its consequences.
See Commonwealth v.
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J-S61006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF IN THE SUPERIOR COURT OF PENNSYLVANIA PENNSYLVANIA
Appellee
v.
HERMAN CAVE
Appellant No. 451 EDA 2017
Appeal from the PCRA Order January 9, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002184-2006, CP-46-CR-0005508-2013, CP-46-CR-0005689-2014
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 06, 2017
Herman Cave appeals from the order entered in the Court of Common
Pleas of Montgomery County dismissing his Post-Conviction Relief Act1
(“PCRA”) petition. After review, we affirm.
Cave pled guilty to aggravated assault2 after he shot Raheem Jones-
Gant during a robbery. At the time of the shooting, Cave was on both
probation and parole due to prior convictions for possession with intent to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. § 9541 et seq.
2 18 Pa.C.S. § 2702. J-S61006-17
distribute3 (convicted 2013) and robbery4 (convicted 2006). In exchange for
his guilty plea, the Commonwealth agreed to nolle pros thirty additional
charges arising from the same incident, to seek a lesser sentence than the
statutory maximum, and to decline the application of sentencing
enhancements to Cave’s sentence.
After Cave pled guilty, he was sentenced to six to twelve years’
incarceration for the aggravated assault charge, four to eight years’
incarceration for the probation and parole violations of the prior possession
conviction, and six to twelve years’ incarceration for the probation and parole
violations of the robbery conviction. Each sentence ran concurrently from July
21, 2014, the date of Cave’s arrest, which resulted in an aggregate sentence
of six to twelve years’ incarceration.
Cave did not file a direct appeal, but instead filed a timely pro se PCRA
petition on April 5, 2016. In response, the PCRA court appointed counsel,
Bonnie-Anne Brill Keagy, Esquire, to assist with Cave’s PCRA petition.
However, after several months of investigation, Attorney Keagy filed a detailed
Turner5/Finley6 no-merit letter on October 4, 2016 and was permitted to
withdraw from representation. Judge Furber issued a Pa.R.Crim.P. 907 notice
3 CP-46-CR-0005508-13
4 CP-46-CR-0002184-06
5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
6 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
-2- J-S61006-17
of intent to dismiss on October 5, 2016, and Cave filed his pro se response to
that notice on December 19, 2016. Cave’s PCRA petition was dismissed on
January 9, 2017, and Cave filed this timely pro se appeal.
In his appeal, Cave raises five issues, several of which are related. First,
he argues that the PCRA court erred in dismissing his PCRA petition without a
hearing, because he believes his claims have merit. Second, Cave argues that
his trial counsel was ineffective for advising him to enter a guilty plea, and
that his PCRA counsel was ineffective, in essence, for withdrawing from
representation. Third, Cave argues that the negotiated sentence imposed
pursuant to his guilty plea was illegal. Fourth, Cave argues that, in light of
the alleged illegality of the sentence and the ineffectiveness of his counsel, his
constitutional rights were violated. Fifth, Cave combines the above arguments
to reiterate that his counsel was ineffective, that his sentence was illegal, and
that he was misinformed as to the nature of his plea. Each of these arguments
is meritless, and we affirm the PCRA court’s dismissal.
When reviewing an order denying PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and is free of legal
error. Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). The
PCRA court is justified in dismissing a petition without an evidentiary hearing
when, after review, “the judge is satisfied from this review that there are no
genuine issues concerning any material fact and that the defendant is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907. An evidentiary hearing is not
-3- J-S61006-17
a matter of right, and a petitioner must raise an issue of fact to justify such a
hearing. Commonwealth v. Keaton, 45 A.3d 1050 (Pa. Super. 2012). Here,
Cave raised no such issues of fact, and thus the PCRA court’s dismissal was
not in error.
Attorney Keagy’s no-merit letter provided a detailed and well-reasoned
analysis of the reasons why Cave’s PCRA petition was meritless. As both she
and Judge Furber explained, Cave’s guilty plea limited his avenues for appeal,
and Cave’s petition failed to raise an issue which would merit PCRA relief.
Dismissal without hearing was proper, and Cave’s first claim warrants no
relief.
Regarding Cave’s second issue, ineffective assistance of counsel, the
PCRA court committed no error in dismissing Cave’s petition. To be entitled
to relief for ineffective assistance of counsel, a PCRA petitioner must establish
that: 1) the underlying claim has merit; 2) there was no reasonable basis for
counsel’s action or failure to act; and 3) but for the counsel’s course of
conduct, there is a “reasonable probability the result of the proceeding would
have been different.” Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa.
2015). Failure to satisfy any of the three prongs is fatal to a claim of
ineffective assistance of counsel. Commonwealth v. Pond, 846 A.2d 669
(Pa. Super. 2004). Counsel is presumed to provide effective assistance, and
it is solely the petitioner’s burden to establish ineffectiveness.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
-4- J-S61006-17
Cave argues that his counsel at all stages has been ineffective, both at
trial and at the PCRA level. This claim is underdeveloped on appeal, but to
the extent that a cognizable claim can be discerned, said claim depends on
Cave being dissatisfied with the explanation he received regarding the
consequences of his guilty plea. More specifically, Cave believes that he was
misled regarding the sentencing guidelines which would apply to his probation
and parole violations, and that the sentences imposed were more severe than
he had anticipated. This, in Cave’s eyes, warrants a finding of ineffective
assistance by his trial counsel.
However, the record does not reveal any way in which Cave was misled
or misinformed, and Cave intelligently signed the guilty plea colloquy and
confirmed his understanding on the record. N.T. Guilty Plea Hearing,
12/15/2015, at 6-8. The colloquy itself was fully compliant with Pa.R.Crim.P.
590 and it sufficiently described the nature of the plea and its consequences.
See Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995); see also
Commonwealth v. Pollard, 832 A.2d 517 (Pa. Super. 2003). Despite being
given numerous opportunities to seek clarification at his guilty plea hearing,
Cave did not take advantage of these opportunities, and no relief is due on
this basis.
Cave also alleges that his PCRA counsel was ineffective for choosing to
withdraw from his appeal, but this is unfounded. Attorney Keagy complied
fully with the court’s procedural requirements before her withdrawal, and she
thoroughly investigated Cave’s claims prior to submitting her no-merit letter.
-5- J-S61006-17
Cave argues that Attorney Keagy’s withdrawal prejudiced his appeal, but her
withdrawal was conditioned on her belief, and the trial court’s agreement, that
the underlying appeal had no merit to begin with. Thus, this claim fails to
prove ineffective assistance of counsel on all three prongs. Neither Cave’s
trial counsel nor his PCRA counsel were ineffective, and no relief is due on this
basis.
To the extent that Cave argues that his guilty plea was not knowing or
voluntary, this claim—as noted by Judge Furber—is belied by the record. Cave
was given multiple opportunities to seek additional information, to reconsider
his plea, and to complain to the trial court if he felt that his rights were in any
way violated. See N.T. Guilty Plea Hearing, 12/15/2015, at 5-24. Instead of
doing so, Cave pled guilty and signed the colloquy, affirming on the record
that his actions were voluntary, informed, and intelligent. Id. at 7-8. A
thorough search of the record reveals no evidence that Cave was misinformed
or misled by his counsel. In the absence of a more well-developed claim that
his plea was not knowing or voluntary, the PCRA court committed no error in
dismissing Cave’s petition.
Cave’s third, fourth, and fifth claims are inexorably intertwined with the
allegation that his sentence was illegal. Cave mixes several sentencing
standards to reach the conclusion that his sentence was unlawful, but—as the
Commonwealth identifies in its brief, as Judge Furber identified in his order,
and as Attorney Keagy identified in her no-merit letter—Cave’s sentence was
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fully compliant with the sentencing guidelines for the crimes to which he pled
guilty.
“The general rule in Pennsylvania is that in imposing a sentence the
court has discretion to determine whether to make it concurrent with or
consecutive to other sentences then being imposed or other sentences
previously imposed.” Commonwealth v. Hoag, 665 A,2d 1212, 1214 (Pa.
Super. 1995) (citation omitted). Further, upon revocation of probation, “the
trial court is limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Commonwealth v.
Colon, 102 A.3s 1033, 1044 (Pa. Super. 2014). Under these principles,
Cave’s aggregate sentence of six to twelve years’ incarceration is well within
the sentencing limits and is not illegal. Because Cave’s sentence was not
illegal, his claims warrant no relief.
Cave’s final claim is that he derived no benefit from his guilty plea, and
that he thus cannot be held to its terms. His claim of “no benefit” is
unfounded. To the contrary, Cave’s trial counsel successfully negotiated the
dismissal of thirty additional charges and the ultimate imposition of a sentence
far below the statutory maximum. Furthermore, the terms of the guilty plea
precluded the Commonwealth from applying sentencing enhancements which
could have resulted in a substantially more severe sentence. In the absence
of an appealable right enumerated by the PCRA, dissatisfaction with one’s
sentence is an insufficient ground for relief. Commonwealth v. Bedell, 954
A.2d 1209 (Pa. Super. 2008).
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In short, Cave has failed to establish any basis upon which relief is due.
His sentence was legal, his counsel was effective, and his plea was knowing
and voluntary. Judge Furber’s dismissal of the PCRA petition was not in error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/6/2017
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