Appeal from the Order December 10, 2007, In the Court of Common Pleas of Westmoreland County, Criminal Division at No. CP-65-CR-0000982-2003.
The opinion of the court was delivered by: Popovich, J.
BEFORE: BENDER, FREEDBERG, and POPOVICH, JJ.
¶ 1 Appellant Carl W. Springer appeals the order denying his Post Conviction Relief Act (PCRA)*fn1 petition claiming that the sentence imposed was illegal; and counsel was ineffective for permitting him to plead guilty. We affirm.
¶ 2 The facts and procedural history of this case are as follows:
[Appellant] pleaded guilty on September 9, 2003 to Burglary, Theft, Receiving Stolen Property, Criminal Mischief and Possession with Intent to Deliver at Criminal Number 982 C 2003. The factual basis of the plea was [Appellant's] forced entry into Hayden's Pharmacy on November 14-15, 2001.
On the date of his plea, [Appellant] completed a Guilty Plea Petition in which he acknowledged the rights he was foregoing and his understanding of the charges and their respective sentences. He indicated that he wished to plead guilty because, he noted, "It is in my best interests." (See Guilty Plea Petition dated September 9, 2003.) Subsequent to the completion of the Guilty Plea Petition, [Appellant] appeared before th[e trial c]court, at which time a colloquy conducted by the [trial c]court demonstrated that he understood both the nature of the charges, the penalty for each charge, and the rights he was forfeiting.
[Appellant] appeared for sentencing on January 29, 2004. The [trial c]court had ordered a Pre-Sentence Report that was made available to his counsel. (NT 2-3.) Although there was a general plea of guilty, defense counsel requested that [Appellant's] sentence run concurrently with sentences imposed in Cambria County. (NT 9.) The [trial c]court agreed to this proposal. (NT 10.) [Appellant] was given an opportunity to speak, which he refused.
A sentence of 5-10 years was imposed on Count I, Burglary, and 2-4 years imposed at Count V, Possession with Intent to Deliver, to run consecutively to Count I. Restitution was ordered. The remaining charges either merged or no further sentence was imposed. Further, the sentences were ordered to be concurrent with the sentence imposed in Cambria County. [Appellant] was informed of his appeal rights. [No post-sentence motions or appeals to any appellate court were filed. However, o]n January 23, 2005, [Appellant] filed a Petition for Post Conviction Collateral Relief [seeking the appointment of counsel and correction of his sentence to conform with the law].*fn2 On March 28, 2007, [.] counsel [other than guilty plea counsel] was appointed. Counsel filed an Amendment to the Petition for Post Conviction Collateral Relief as well as a Second Amended Petition for Post Conviction Relief.
Trial court opinion, 11/02/07, at 1-2. The Commonwealth filed an answer to Appellant's second amended PCRA petition. By order dated October 31, 2007, the PCRA court filed a notice of intention to dismiss Appellant's PCRA petition, which occurred without a hearing on December 7, 2007. Appellant filed the present appeal on December 26, 2007, and submitted a Pa.R.A.P. 1925(b) statement raising four issues, but, on appeal, the claims were reduced to two, the first of which posits:
WHETHER THE PLEA COURT SET AN ILLEGAL SENTENCE WHEN IT FAILED TO MERGE POSSESSION WITH INTENT TO DISTRIBUTE CONTROLLED SUBSTANCE WITH BURGLARY AND SENTENCED APPELLANT TO SERVE A CONSECUTIVE SENTENCE FOR POSSESSION WITH INTENT TO DELIVER CONTROLLED SUBSTANCE IN VIOLATION OF 18 Pa.C.S.A. § 3502(d), AS THE CRIME OF POSSESSION WITH INTENT TO DELIVER CONTROLLED SUBSTANCE WAS AN INTENDED OFFENSE TO BE COMMITTED BY APPELLANT AFTER THE BURGLAROUS ENTRY?
¶ 3 In reviewing the propriety of a PCRA court's order dismissing a PCRA petition, we are limited to determining whether the PCRA court's findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Ragan, 592 Pa. 217, 220, 923 A.2d 1169, 1170 (2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Spencer, 892 A.2d 840, 841 (Pa. Super. 2006) (citation omitted). Moreover, "[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008), appeal denied, ____ A.2d ____, 102 WAL 2008 (Pa. August 7, 2008) (citing Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001) (citation omitted).
¶ 4 Initially, we shall address Appellant's argument that his possession with intent to deliver conviction "was an intended offense to be committed after the burglarous entry[,]" and, therefore, it should have merged for sentencing purposes with the burglary conviction.*fn3 Appellant's brief, at 6.
¶ 5 The determination of whether crimes merge for sentencing purposes has posed problems in this Commonwealth, as is evident by the recent Supreme Court decision in Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006) (plurality), reargument denied, 2007 Pa. LEXIS 381 (filed February 20, 2007),wherein a majority of the high Court could not agree on what approach (a fact-based or an element-based analysis) to embrace in a merger context. As a result, a panel of this Court adopted the dissent's view in Jones (an element-based tact) to resolve a merger question. See Commonwealth v. Williams, 920 A.2d 887 (Pa. Super. 2007). Accord Commonwealth v. Ede, 949 A.2d 926, 933 (Pa. Super. 2008); Commonwealth v. Martz, 926 A.2d 514 (Pa. Super. 2007), appeal denied, 940 A.2d 363 (Pa. 2008). The exception to Williams is when a statute dictates the manner and method by which merger will occur. See Commonwealth v. Burkhardt, 526 Pa. 341, 346, 586 A.2d 375, 377-78 (1991) ("[I]n the context of simultaneous convictions ...