Com. v. Potok, W.

• Court: Superior Court of Pennsylvania
• Decided: June 5, 2018
• Docket: 2186 EDA 2017
• Status: Unpublished

Opinion

J-S19041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WALTER POTOK : : Appellant : No. 2186 EDA 2017

Appeal from the PCRA Order June 23, 2017 in the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0003017-2007

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED JUNE 05, 2018

Appellant, Walter Potok, appeals from the order denying his first petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

We take the following facts and procedural background from the PCRA

court’s August 18, 2017 opinion and our independent review of the record.

On October 1, 2007, Appellant pleaded guilty pursuant to a negotiated plea to

one count of receiving stolen property, a third degree felony.1 The charge

related to Appellant’s unauthorized entry into a neighbor’s home and his theft

of her computer and jewelry. Pursuant to the plea, the trial court sentenced

him to a term of not less than eleven and one-half nor more than twenty-

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1 18 Pa.C.S.A. § 3925(a). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S19041-18

three months’ imprisonment, followed by three years of probation. The court

further ordered Appellant to participate in drug and alcohol counseling and to

seek employment. Appellant was immediately paroled to work release.

On May 30, 2008, at Appellant’s request, the court amended his

sentence, and placed him on house arrest. On September 3, 2008, the court

issued a bench warrant for Appellant’s failure to appear. On November 24,

2009, after another violation, the court terminated parole, revoked probation,

and imposed a sentence of not less than eleven and one-half nor more than

twenty-three months’ incarceration, plus five years of probation. On May 26,

2010, the court paroled Appellant to an inpatient drug facility. Appellant again

violated the conditions of his probation, and, on November 30, 2010, after

hearing argument from counsel and giving Appellant the opportunity for

allocution, the court terminated parole, revoked probation, and sentenced him

to a term of not less than two nor more than six years’ imprisonment, followed

by six years of probation. The trial court also deemed him RRRI eligible after

eighteen months. (See N.T. Hearing, 11/30/10, at 24).

On November 28, 2011, Appellant filed a timely pro se PCRA petition.

Appointed counsel filed an amended petition on July 21, 2016. The

Commonwealth filed a motion to dismiss the petition on January 26, 2017.

On March 7, 2017 and May 3, 2017, the court provided Appellant with notice

of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P.

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907(1). On June 23, 2017, the PCRA court dismissed Appellant’s petition.

Appellant timely appealed.2

Appellant raises two issues for our review.

I. Whether the court erred in not granting relief on the PCRA petition alleging [violation of probation (VOP)] counsel was ineffective[?]

II. Whether the [c]ourt erred in denying the Appellant’s PCRA petition without an evidentiary hearing[?]

(Appellant’s Brief, at 8) (issues renumbered for ease of disposition).

Our standard of review of an order denying a PCRA petition is limited to an examination whether the PCRA court’s determination is supported by the evidence of record and free of legal error. We grant great deference to the PCRA court’s findings, and we will not disturb those findings unless they are unsupported by the certified record.

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2018) (citation

omitted).

In his first issue, Appellant claims that VOP counsel was ineffective

because he failed to challenge his “unreasonable and excessive sentence” or

to object to the court’s decision not to request a presentence investigation

report (PSI). (Appellant’s Brief, at 17; see id. at 18). Appellant’s issue lacks

merit.

The law presumes counsel has rendered effective assistance, and the burden of demonstrating ineffectiveness rests with an appellant. To satisfy this burden, an appellant must plead and ____________________________________________

2On August 1, 2017, Appellant filed a timely court-ordered statement of errors complained of on appeal. The court filed an opinion on August 18, 2017. See Pa.R.A.P. 1925.

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prove by a preponderance of the evidence that: (1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different. Failure to satisfy any prong of the test will result in rejection of the appellant’s ineffective assistance of counsel claim.

Holt, supra at 1018 (citations and quotation marks omitted). Importantly,

“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim.”

Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (citation

Here, Appellant argues first that counsel was ineffective for failing to

challenge his “unreasonable and excessive sentence[.]” (Appellant’s Brief, at

17). This argument does not merit relief.

“[S]entencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion[.]” Commonwealth v. Ferguson, 893 A.2d

735, 739 (Pa. Super. 2006), appeal denied, 906 A.2d 1196 (Pa. 2006)

(citation omitted).

Once probation has been revoked, a sentence of total confinement may be imposed if any of the following conditions exist: (1) the defendant has been convicted of another crime; or (2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or, (3) such a sentence is essential to vindicate the authority of court.

Commonwealth v. Edwards, 71 A.3d 323, 327 (Pa. Super. 2013) (citations

omitted); see also 42 Pa.C.S.A. § 9771(c).

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When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S.[A.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of defendant, and it must impose an individualized sentence. The sentence should be based on the minimum confinement consistent with the gravity of the offense, the need for public protection, and the defendant’s needs for rehabilitation.

Ferguson, supra at 739 (citation omitted). “Furthermore, pursuant to

Pa.R.Crim.P. 704, the trial court ‘shall state on the record the reasons for the

sentence imposed.’ Pa.R.Crim.P. 704(C)(2).” Id. at 740. “However,

Sentencing Guidelines do not apply to sentences imposed following a

revocation of probation.” Id. at 739 (citation omitted).

Here, at sentencing, the trial court stated that it considered “the gravity

of [the] offense, the impact upon the community, [the] need to protect the

community, [and Appellant’s] rehabilitative needs.” (N.T. Hearing, at 21). It

noted that this was Appellant’s fourth probation revocation, that he has

“demons,” and that “more structure is needed.” (Id. at 22; see id. at 17,

21). Finally, the court recognized that “[it is] important that the state has

sufficient time to give [Appellant] the treatment that [he] need[s] to have.”

(Id. at 23).

Based on the foregoing, the trial court properly considered all sentencing

factors and stated its reasons for imposing Appellant’s sentence on the record

before imposing Appellant’s sentence of total confinement. See Edwards,

supra at 327; Ferguson, supra at 739-40. Hence, the PCRA court properly

found counsel was not ineffective for failing to raise a meritless challenge to

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Appellant’s sentence. See Spotz, supra at 1210; Holt, supra at 1017.

Appellant’s first argument alleging counsel’s ineffective representation lacks

Appellant next argues that counsel was ineffective for not objecting to

the absence of a PSI because this “tends to point to the conclusion that [the

court] did not sufficiently consider all factors relevant to the Appellant’s case

at sentencing.” (Appellant’s Brief, at 18). This argument does not merit relief.

“The Pennsylvania Rules of Criminal Procedure vest a sentencing judge

with the discretion to order a pre-sentence investigation (PSI) as an aid in

imposing an individualized sentence.” Commonwealth v. Carrillo-Diaz, 64

A.3d 722, 725 (Pa. Super. 2013); see also Pa.R.Crim.P. 702.

The first responsibility of the sentencing judge [is] to be sure that he ha[s] before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant. Thus, a sentencing judge must either order a PSI report or conduct sufficient presentence inquiry such that, at a minimum, the court is apprised of the particular circumstances of the offense, not limited to those of record, as well as the defendant’s personal history and background. . . .

Carrillo-Diaz, supra at 725-26 (citation omitted).

In this case, the trial court presided over Appellant’s guilty plea, initial

sentencing, and previous violation of probation hearings. It noted the

circumstances of his violations, heard argument from counsel, considered the

probation department’s recommendation and Appellant’s personal issues, and

gave him the opportunity for allocution. (See N.T. Hearing, at 20-24).

Therefore, the sentencing court had “sufficient information to enable [it] to

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make a determination of the circumstances of the offense and the character

of [Appellant].” Carrillo-Diaz, supra at 725 (citation omitted). Hence, the

PCRA court properly found that counsel was not ineffective for failing to

challenge the lack of a PSI. See Spotz, supra at 1210; Holt, supra at 1017.

Appellant’s first issue, alleging the ineffectiveness of VOP counsel, lacks merit.

In his second issue, Appellant argues that the PCRA court abused its

discretion in denying his petition without a hearing. (See Appellant’s Brief, at

15-16). This issue lacks merit.

A PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact. [See] Pa.R.Crim.P. 909(B)(2)[.] A PCRA court’s decision denying a claim without a hearing may only be reversed upon a finding of an abuse of discretion. . . .

Commonwealth v. Keaton, 45 A.3d 1050, 1094 (Pa. 2012) (case citation

In this case, Appellant’s petition failed to raise any genuine issue of

material fact. See id. Therefore, the PCRA court did not abuse its discretion

in denying Appellant’s petition without a hearing, and his second issue lacks

merit. See id.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/5/18

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