Com. v. Shatzer, B.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2024
• Docket: 8 MDA 2024
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN SHANE SHATZER : : Appellant : No. 8 MDA 2024

Appeal from the Order Entered March 21, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000700-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN SHANE SHATZER : : Appellant : No. 358 MDA 2024

Appeal from the PCRA Order Entered March 21, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000699-2018

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 6, 2024

Brian Shane Shatzer appeals from the order denying his first petition for

relief filed under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. We affirm.

The facts and procedural history may be summarized as follows. On

March 19, 2018, Shatzer was charged at each of the above dockets with one J-S26044-24

count of delivery of a controlled substance and one count of criminal use of a

communications facility after an investigation by the Franklin County Drug

Task Force revealed that Shatzer had, on two separate occasions in December

2017, sold oxycodone pills to a confidential informant.1

Following a two-day trial, a jury convicted Shatzer on all charges. On

August 28, 2019, the trial court sentenced Shatzer to an aggregate term of

five to ten years in prison. The trial court denied Shatzer’s timely post-

sentence motion. Shatzer appealed. In his direct appeal, Shatzer claimed 1)

all of the charges should have been dismissed based on a Pa.R.Crim.P. 600

violation; 2) the trial court abused its discretion by sentencing him using the

incorrect gravity score; and 3) the trial court should have credited him for

time served beginning January 26, 2018.

On October 15, 2020, this Court affirmed Shatzer’s judgment of

sentence. Commonwealth v. Shatzer, 241 A.3d 429 (Pa. Super. 2020)

(non-precedential decision). We concluded that Shatzer’s first two issues

were not properly preserved for review.2 This Court rejected Shatzer’s third

____________________________________________

1 On January 26, 2018, Shatzer was charged at a different docket number with one count of drug delivery resulting in death as the result of an unrelated incident in which Schatzer sold narcotics to an individual who later suffered a fatal drug overdose. He was convicted after a jury trial and later sentenced to 114 to 240 months in prison, with credit for time served.

2 In a footnote, this Court stated that even if Shatzer had preserved his Rule

600 claim, we would conclude that it lacked merit given that the record reflected several delays attributable to Shatzer or his counsel. This Court did (Footnote Continued Next Page)

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issue on its merits because Shatzer already received time credit when he was

sentenced for his drug delivery resulting in death conviction.

On September 9, 2021, Shatzer filed a timely pro se PCRA petition and

the PCRA court appointed counsel. PCRA counsel filed an amended petition

on February 4, 2022. On February 25, 2022, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss Shatzer’s petition without a

hearing. Shatzer did not file a response. By order entered March 21, 2022,

the PCRA court denied Shatzer’s petition. Although Shatzer did not file a

timely appeal, his PCRA appellate rights were reinstated on December 4, 2023,

and current counsel was appointed. These appeals followed, which we later

consolidated. The PCRA court did not require Pa.R.A.P. 1925 compliance.

Shatzer raises the following issue on appeal:

1. Did the [PCRA] court err and/or [abuse] its discretion in dismissing [Shatzer’s] Amended Post Conviction Relief Act Petition filed February 4, 2022, without a hearing where counsel failed to include a statement in compliance with Pa.R.A.P. 2119(f) in his appellate brief which resulted in [Shatzer’s] sentencing claim being precluded from appellate review?

Shatzer’s Brief at 8.3

not provide a similar analysis regarding Shatzer’s discretionary sentencing claim.

3 The Commonwealth did not file a brief in these appeals, or a letter even acknowledging the appeals were filed, but that it would not be filing a brief.

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This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain 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. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings. To obtain a reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of material fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations

omitted).

Shatzer’s claim challenges the effectiveness of counsel.4 To obtain relief

under the PCRA premised on a claim that counsel was ineffective, a petitioner

4 On February 28, 2024, after current counsel filed an appellate brief, Shatzer

filed a pro se “Notice to Courts and Counsel,” wherein he attempts to supplement current counsel’s claims pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) (holding that a PCRA petitioner, after PCRA relief is denied and after obtaining new counsel or acting pro se, may raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal). Here, Shatzer is still represented by current counsel such that Shatzer cannot challenge his effectiveness under Bradley. Nonetheless, as discussed infra, Shatzer’s claim regarding a Rule 600 violation and a time credit issue have already been rejected on direct appeal as meritless. Thus, (Footnote Continued Next Page)

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must establish by a preponderance of the evidence that counsel's

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id. In

assessing a claim of ineffectiveness, when it is clear that the petitioner has

failed to meet the prejudice prong, the court may dispose of the claim on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995). Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

to the extent we characterize Shatzer’s filing as an application for relief to challenge PCRA counsel’s ineffectiveness, it is denied.

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We first note that Shatzer’s claim is cognizable under the PCRA. See

Commonwealth v. Sarvey, 199 A.3d 436, 455 (Pa. Super. 2018) (explaining

“claims implicating the discretionary aspects of sentencing raised in the

context of an ineffectiveness claim are cognizable under the PCRA”).

To succeed on an ineffectiveness claim for failure to preserve a challenge

to the discretionary aspects of sentencing, the PCRA petitioner must

demonstrate prejudice, i.e., the underlying sentencing claim merits relief.

See Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007)

(explaining an ineffectiveness claim for failure to preserve a discretionary

sentencing issue requires showing a reasonable probability that the

sentencing court would have imposed a lesser sentence).

Here, the PCRA court concluded that Shatzer failed to demonstrate that

he suffered prejudice as a result of counsel’s failure to preserve Shatzer’s

sentencing claim by filing a Pa.R.A.P. 2119(f) statement. The court noted that

the waived sentencing claim was raised and addressed by the trial court in

response to Shatzer’s post-sentence motion. The PCRA court then relied upon

its prior rationale as stated in its opinion accompanying its Rule 907 notice:

[Shatzer] alleges, “the District Attorney provided his counsel with a document showing the Offense Gravity Score [(“OGS”)] of 5 [instead of 7]. Shatzer alleges that he [relied] on said information in choosing to try the case and that the District Attorney should be bound to the information he provided to his attorney.” While the Commonwealth appears to acknowledge that it incorrectly assigned an OGS of 5 to the delivery charges in preparing pretrial discovery sentence guidelines, ultimately it is the court’s obligation to correctly calculate the OGS score to be

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used at sentencing. We agree that it is the court’s obligation to ensure that a correctly calculated and applicable OGS was used in imposing sentence. In this case, the correct OGS [of 7] was used by the Adult Probation Department in preparing the sentencing included in the PSI. In turn, we used the correct OGS in imposing sentence.

***

As the correct OGS was applied, this claim lacks merit.

PCRA Court Opinion, 1/29/24, at 9 (citations and excess capitalization

Our review of the record supports the PCRA court’s conclusion. Indeed,

Shatzer’s claim that he would have not gone to trial had he known the true

OGS for his crimes is refuted by the record. At a pretrial conference the trial

court stated: “The Court notes that despite [Shatzer’s] request to resolve

these matters short of trial, the Commonwealth has not offered to do so as

[Shatzer] has a third pending [drug delivery resulting in death] case the

Commonwealth believes should be resolved with these two matters.” Order

of Court, 5/6/19, at 2. Moreover, Shatzer’s claim does not actually involve a

discretionary sentencing claim, but rather, a challenge to the voluntariness of

his guilty plea. Even if counsel had properly preserved his sentencing claim,

he would not have been entitled to relief.

In sum, the PCRA court correctly determined that Shatzer’s

ineffectiveness claim lacked merit and that an evidentiary hearing was not

warranted. We therefore affirm the order denying Shatzer post-conviction

relief.

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Application denied. Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 08/06/2024

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