Com. v. Swaggard, M. (memorandum)

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J-S30042-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL EUGENE SWAGGARD Appellant No. 1762 MDA 2013 Appeal from the PCRA Order September 6, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003354-2011 BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY JENKINS, J.: FILED JULY 15, 2014 Appellant Michael Swaggard appeals pro se from the order of the Court of Common Pleas of Berks County denying his petition filed pursuant to the 9542, et seq. We affirm. On September 12, 2012, Swaggard pled guilty in six docket numbers, including possession with intent to deliver controlled substances 1 at docket CP-06-CR-0003354receive a sentence of 4 to 8 years of incarceration on this charge. Swaggard did not file post-sentence motions or a direct appeal. ____________________________________________ 1 35 § 780-113(a)(30). J-S30042-14 Test appointed counsel. Counsel filed a no-merit letter pursuant to Commonwealth v. Finley2 and Commonwealth v. Turner,3 and an application to withdraw as counsel. On July 30, 2013, the trial court issued a notice of its intent to dismiss the petition without a hearing pursuant to Pennsylvania Rule of Criminal filed a petition to proceed pro se, dated July 29, 2013 and docketed August proceed pro se Swaggard filed a response to the notice of intent to dismiss. On September 6, 2013, the court dismissed the PCRA petition. Swaggard timely appealed and both he and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. Swaggard raises the following questions on appeal: 1. Whether [the appointed PCRA attorney] provided ineffective assistance where he failed to thoroughly review the record in order to regards to him being sentenced outside the guidelines without sufficient reason before seeking to withdraw which is a prerequisite of Turner/Finley. ____________________________________________ 2 550 A.2d 213 (Pa.Super.1998). 3 544 A.2d 927 (Pa.1988). -2- J-S30042-14 2. Whether the PCRA court abused its discretion and or erred as a matter of law where the court permitted [the appointed PCRA attorney] to withdraw without conducting its own independent review of the record in order to determine the merits of the Appellant PCRA relief based solely on an adoption -merit analysis Swaggard first contends PCRA counsel was ineffective. Swaggard waived this claim by failing to claim ineffectiveness of PCRA counsel after receipt of the withdrawal letter and notice of intent to dismiss. See Opinion his PCRA petition argued he was entitled to an evidentiary hearing because the trial court abused its discretion in sentencing him outside the sentencing guidelines. This was an issue of fact. See Response to Notice of Intent to Dismiss 8/19/13. Swaggard did not allege ineffectiveness of PCRA counsel. pro se voluntary plea, rather than the imposition of a sentence outside the guidelines wi Pro Se, at ¶ 2. Swaggard made this statement in support of his argument that the court should permit him to proceed pro se, not in support of an argument that PCRA counsel was ineffective. Accordingly, Swaggard waived his PCRA counsel ineffectiveness claim because he failed to allege PCRA counsel was ineffective following -3- J-S30042-14 dismiss. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.2009). Swaggard next contends the trial court erred because it failed to conduct an independent review of the record and denied relief based on The trial court conducted an independent review. Opinion 12/2/13, at 4. Moreover, the claim advanced by Swaggard, i.e., that the trial court imposed an excessive sentence, lacks merit. This is a challenge to the discretionary aspects of sentencing, which is not a cognizable claim under the PCRA. Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa.Super.2007). Further, during the guilty plea colloquy, the court noted that the guilty plea agreement called for a sentence of 4 to 8 years imprisonment for possession with intent to deliver. Swaggard signed this agreement. N.T. 9/12/12, at 4. Id. at 7; Statement Accompanying standard sentencing guidelines range. The assistant district attorney noted Swaggard was a repeat felon, the offense gravity score was 8, the standard sentencing guidelines range was 40 to 52 months, the aggravated range was 61 months, and the mitigated range was 31 months. N.T. 9/12/12, at 4-5. Swaggard was bound by the plea agreement terms, which provided for a sentence of 4 to 8 years for the possession with intent to deliver charge. Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super.2009) -4- J-S30042-14 accepts and approves the plea, then the parties and the court must abide by the terms the court correctly outlined the applicable sentencing guidelines range, as Swaggard had two prior burglary offenses, which gave him a prior record score of Repeat Felony 1 and Felony 2 Offender, also known as RFEL, not a prior record score of 3 or 5, as Swaggard alleged.4 See 204 Pa. ADC. §§ 303.4, 303.7. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/15/2014 ____________________________________________ 4 See Appellant Brief at iv, 4, 5, 9. The sentencing guidelines do not include a prior record score of 8, and we assume Swaggard meant to argue he should have had a prior record score of 3 or 5. 204 Pa. Code § 303.4. -5-

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