Appeal from the PCRA Order of November 13, 2012 In the Court of Common Pleas of Lawrence County Criminal Division at No.: CP-37-CR-0000609-2010
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]
Larry F. Dugan challenges the PCRA court's order dismissing his petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541, et seq. We affirm.
The trial court set forth the following brief procedural history of the case:
On March 3, 2011, [ Dugan] pleaded guilty to the charges of Attempted Unlawful Contact with a Minor pursuant to 18 Pa.C.S.A. § 6318(a)(1), Unlawful Contact with a Minor – Obscene or Explicit Sexual Material pursuant to 18 Pa.C.S.A. § 6318(a)(4), and two (2) counts of Criminal Use of a Communication Facility pursuant to 18 Pa.C.S.A. § 7512(a). This Court imposed a concurrent sentence upon [ Dugan] of four (4) to eight (8) years[ '] imprisonment by Order of Court dated March 3, 2011. I n calculating this sentence, this Court considered, inter ali [ sic], [ Dugan's] 1974 burglary conviction in the State of Ohio.
PCRA Court Opinion ("P.C.O."), 11/ 13/ 2012, at 1-2.
Dugan did not file a direct appeal. On February 17, 2012, Dugan filed a timely pro se petition for relief pursuant to the PCRA. I n a lengthy memorandum attached to his petition, Dugan argued that his sentence was illegal because incorporating into his prior record score a conviction that preceded the enactment of Pennsylvania's sentencing guidelines violated the ex post facto clause of the United States and Pennsylvania Constitutions. The PCRA court appointed counsel, and a PCRA hearing was held on October 25, 2012. By order entered on November 13, 2012, the PCRA court denied Dugan's petition. Dugan filed a timely notice of appeal of the PCRA court's order on November 28, 2012.
On January 8, 2013, the PCRA court directed Dugan to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Dugan's Rule 1925 statement does not appear in the certified record and is not appended to his brief. However, it appears that the PCRA court received one, as evinced by its February 28, 2013 opinion pursuant to Rule 1925(a). Therein, the court characterized the issues raised by Dugan as follows:
(1) [ the trial court] erred in denying his [ PCRA petition] because his prior counsel was ineffective for failing to object to the [ trial court's] consideration of a prior conviction during his sentencing; (2) [ the trial court] erred in denying his [ PCRA petition] because prior counsel failed to explain the charges against him or his prior record score; (3) [ the trial court] erred in denying his [ PCRA petition] because prior counsel was ineffective for failing to file a m otion to modify his sentence; and (4) [ the trial court] erred in denying his [ PCRA petition] because his sentence violates the Eighth Amendment to the United States Constitutional prohibition against cruel and unusual punishment.
P.C.O., 2/ 28/ 2013, at 1. The PCRA court addressed and rejected these issues (and no others) in its Rule 1925(a) opinion.
Before this Court, Dugan raises the following issues:
1) Whether trial counsel was ineffective at sentencing in failing to present mitigating circumstances related to [ Dugan's] ...