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[U] Commonwealth v. Buckingham

Superior Court of Pennsylvania

March 10, 2014



Appeal from the PCRA Order of May 13, 2013 In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000201-2011




Appellant, Avery Earl Buckingham, appeals from the order entered on May 13, 2013 dismissing his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On April 16, 2012, Appellant pled guilty to third-degree murder[1] and conspiracy to commit murder.[2] On May 22, 2012, Appellant was sentenced to an aggregate term of 40 to 80 years' imprisonment. Appellant did not file a direct appeal. On September 20, 2012, Appellant filed a pro se PCRA petition.[3] On April 23, 2013, the PCRA court gave notice that it intended to dismiss the petition without an evidentiary hearing pursuant to Pennsylvania Rule of Criminal Procedure 907(1). On May 13, 2013, the PCRA court dismissed Appellant's PCRA petition. On May 14, 2013, Attorney Jarett Smith was re-appointed to represent Appellant on appeal. This timely appeal followed.[4]

Appellant's court-appointed counsel filed a brief pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386 U.S. 738 (1967); however, counsel failed to file a petition for leave to withdraw or properly advise Appellant of his rights to proceed pro se or retain new counsel.[5] Accordingly, we denied counsel's request to withdraw and ordered him to comply with the procedural requirements for withdrawal or file an advocate's brief. Commonwealth v. Buckingham, 963 WDA 2013 (Pa. Super. Dec. 24, 2013) (unpublished memorandum); see Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal citations omitted). Thereafter, on January 10, 2014, counsel filed an advocate's brief.

Appellant presents one issue for our review:

Should [ this] Court reverse and remand the [ PCRA court] and grant the Appellant's PCRA petition [ because] the [ PCRA] court denied the PCRA [ petition] without a hearing where the Appellant's right to receive the sentence pursuant to the plea was inconsistent with the sentence imposed as to avoid manifest injustice?

Appellant's Amended Brief at 13.

As most PCRA appeals involve mixed questions of fact and law, "[ o]ur standard of review of a [ PCRA] court order granting or denying relief under the PCRA calls upon us to [ consider] whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013) (internal quotation marks and citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citation omitted).

Appellant's claim is related to the purported ineffectiveness of his trial counsel. A "defendant's right to counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, [ Section] 9 of the Pennsylvania Constitution is violated where counsel's performance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation omitted). " Counsel is presumed to be effective." Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012) (citation omitted).

In order to overcome the presumption that counsel was effective, Appellant must establish that " (1) the 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 client's interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa. Super. 2013) (internal alterations, quotation m arks, and citation omitted). "The burden of proving ineffectiveness rests with the appellant, " and "[ t] he failure to satisfy any one of the prongs of the test for ineffective assistance of counsel requires rejection of the claim ." Commonwealth v. Hill, 42 A.3d 1085, 1089-1090 (Pa. Super. 2012), appeal granted on other grounds, 58 A.3d 749 (Pa. 2012) (citations omitted).

Appellant raises several arguments regarding his trial counsel's alleged ineffectiveness. However, "[ p]rior to addressing the substance of [ Appellant's arguments] we must determine whether [ he] properly preserved [ the issues] ." Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011) (citation omitted). An appellant is required to raise an issue in the PCRA court in order for the issue to be preserved for appellate review. Pa.R.A.P. 302(a); Commonwealth v. Roney, 79 A.3d 595, 616 (Pa. 2013). In this case, Appellant's PCRA petition alleged that he was sentenced for first-degree murder when his plea agreement provided that he would plead guilty to third-degree murder and criminal conspiracy. See PCRA Petition, 9/20/12, at 3. Appellant did not raise any other issues in his petition. See generally id. Thus, whether Appellant was improperly sentenced for first-degree murder is the only issue preserved for appellate review.

A review of the certified record reveals that Appellant was sentenced for third-degree murder and criminal conspiracy - not first degree murder. See N.T., 5/22/12, at 18. Thus, the PCRA court properly determined that the lone issue raised in Appellant's petition lacked arguable merit and therefore dismissed Appellant's petition without an evidentiary hearing. See Pa.R.Crim .P. 907(1).

Order affirmed.

Judgment Entered.

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