Com. v. Dugan, L. (memorandum)

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J- S60016- 13 N ON - PRECED EN TI AL D ECI SI ON - SEE SUPERI OR COURT I .O.P. 6 5 .3 7 COMMONWEALTH OF PENNSYLVANI A I N THE SUPERI OR COURT OF PENNSYLVANI A Appellee v. LARRY F. DUGAN Appellant No. 1988 WDA 2012 Appeal from t he PCRA Order of Novem ber 13, 2012 I n t he Court of Com m on Pleas of Lawrence Count y Crim inal Division at No.: CP- 37- CR- 0000609- 2010 BEFORE: FORD ELLI OTT, P.J.E., WECHT, J., and STRASSBURGER, J. * MEMORANDUM BY WECHT, J. FI LED: February 3, 2014 Larry F. Dugan challenges t he PCRA court s order dism issing his pet it ion pursuant t o t he Post - Convict ion Relief Act ( PCRA ) , 42 Pa.C.S. §§ 9541, et seq. We affirm . The t rial court set fort h t he following brief procedural hist ory of t he case: On March 3, 2011, [ Dugan] pleaded guilt y t o t he charges of At t em pt ed Unlawful Cont act wit h a Minor pursuant t o 18 Pa.C.S.A. § 6318( a) ( 1) , Unlawful Cont act wit h a Minor Obscene or Explicit Sexual Mat erial pursuant t o 18 Pa.C.S.A. § 6318( a) ( 4) , and t wo ( 2) count s of Crim inal Use of a Com m unicat ion Facilit y pursuant t o 18 Pa.C.S.A. § 7512( a) . This Court im posed a concurrent sent ence upon [ Dugan] of four ( 4) t o eight ( 8) years[ ] im prisonm ent by Order of Court dat ed March 3, 2011. I n calculat ing t his sent ence, t his Court ____________________________________________ * Ret ired Senior Judge assigned t o t he Superior Court . J- S60016- 13 considered, int er ali [ sic] , [ Dugan s] 1974 burglary convict ion in t he St at e 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 t im ely pro se pet it ion for relief pursuant t o t he PCRA. I n a lengt hy m em orandum at t ached t o his pet it ion, Dugan argued t hat his sent ence was illegal because incorporat ing int o his prior record score a convict ion t hat preceded t he enact m ent of Pennsylvania s sent encing guidelines violat ed t he ex post fact o clause of t he Unit ed St at es and Pennsylvania Const it ut ions. The PCRA court appoint ed counsel, and a PCRA hearing was held on Oct ober 25, 2012. By order ent ered on Novem ber 13, 2012, t he PCRA court denied Dugan s pet it ion. Dugan filed a t im ely not ice of appeal of t he PCRA court s order on Novem ber 28, 2012. On January 8, 2013, t he PCRA court direct ed Dugan t o file a concise st at em ent of errors com plained of on appeal pursuant t o Pa.R.A.P. 1925( b) . Dugan s Rule 1925 st at em ent does not appear in t he cert ified record and is not appended t o his brief. However, it appears t hat t he PCRA court received one, as evinced by it s February 28, 2013 opinion pursuant t o Rule 1925( a) . Therein, t he court charact erized t he issues raised by Dugan as follows: ( 1) [ t he t rial court ] erred in denying his [ PCRA pet it ion] because his prior counsel was ineffect ive for failing t o obj ect t o t he [ t rial court s] considerat ion of a prior convict ion during his sent encing; ( 2) [ t he t rial court ] erred in denying his [ PCRA pet it ion] because prior counsel failed t o explain t he charges against him or his prior record score; ( 3) [ t he t rial court ] erred in denying his [ PCRA pet it ion] because prior counsel was ineffect ive for failing t o file a m ot ion t o m odify his sent ence; and ( 4) [ t he t rial court ] - 2 - J- S60016- 13 erred in denying his [ PCRA pet it ion] because his sent ence violat es t he Eight h Am endm ent t o t he Unit ed St at es Const it ut ional prohibit ion against cruel and unusual punishm ent . P.C.O., 2/ 28/ 2013, at 1. The PCRA court addressed and rej ect ed t hese issues ( and no ot hers) in it s Rule 1925( a) opinion. Before t his Court , Dugan raises t he following issues: 1) Whet her t rial counsel was ineffect ive at sent encing in failing t o present m it igat ing circum st ances relat ed t o [ Dugan s] life hist ory and background[ ?] 2) Whet her t he sent encing court was m anifest ly unreasonable in not exercising it s discret ion t o depart from t he guidelines in sent encing [ Dugan?] Brief for Dugan at xiv ( num bering added; form at t ing m odified) . For t wo reasons, we m ust find t hat neit her of Dugan s issues as st at ed or argued before t his Court was preserved in t he court below. Consequent ly, we m ust deem t hem waived, and we m ust affirm t he t rial court s order. As not ed, in t he m em orandum at t ached t o Dugan s pro se PCRA pet it ion, Dugan pursued only t he ex post fact o argum ent . appoint ed, but did not file an am ended pet it ion. Counsel was I nst ead, on Oct ober 25, 2012, counsel appeared on Dugan s behalf at t he PCRA hearing, which Dugan at t ended and part icipat ed in by video. During t hat hearing, counsel for Dugan argued only t he ex post fact o issue. Not hing was said about t he absence of m it igat ing circum st ances. Sim ilarly, no challenge was raised or discussed regarding t he t rial court s exercise of discret ion in declining t o depart downward from t he sent encing - 3 - guidelines. Following t he J- S60016- 13 present at ions of counsel for Dugan and for t he Com m onwealt h, Dugan was asked whet her he had anyt hing t o add. He indicat ed t hat he did not . Not es of Test im ony, 10/ 25/ 2012, at 12- 13. Not ably, Dugan does not now challenge t he effect iveness of PCRA counsel for failing t o file an am ended pet it ion or for failing t o raise any issue not raised in Dugan s pro se PCRA pet it ion. Pennsylvania Rule of Appellat e Procedure 302( a) provides t hat [ i] ssues not raised in t he lower court are waived and cannot be raised for t he first t im e on appeal. To t hat end, [ f] ailure t o raise an issue before t he PCRA court result s in waiver. Com m on w e a lt h v. Pa ddy, 15 A.3d 431, 446 ( Pa. 2011) ( cit ing Com m on w e a lt h v. N a t ivida d, 938 A.2d 310, 322, 336 ( Pa. 2007) ) . Because none of t he issues Dugan seeks t o argue before t his Court was present ed in t he first inst ance t o t he PCRA court , t hey are waived for purposes of appeal. Even if t his were not t he case, however, t he issues would be waived for anot her reason: As best we can discern in t he absence from t he cert ified record of Dugan s Rule 1925( b) st at em ent , 1 he did not raise t he issues ____________________________________________ 1 We long have held t hat responsibilit y rest s upon t he appellant t o ensure t hat t he record cert ified on appeal is com plet e in t he sense t hat it cont ains all of t he m at erials necessary for t he reviewing court t o perform it s dut y. Com m on w e a lt h v. Bon gior n o, 905 A.2d 998, 1000 ( Pa. Super. 2006) . Moreover, Pa.R.A.P. 2111( a) ( 11) requires an appellant t o at t ach a copy of his or her Rule 1925( b) st at em ent , if any, t o his or her brief. Dugan has failed t o do so in t his case. - 4 - J- S60016- 13 present ed t o us in t hat st at em ent , depriving t he PCRA court of t he opport unit y t o consider t hose challenges t o it s order in t he first inst ance. I n service of t he sam e principles set fort h above, t his, t oo, result s in waiver of t he issues present ed t o t his Court . Se e Pa.R.A.P. 1925( b) ( 4) ( vii) ( I ssues not included in t he St at em ent and/ or not raised in accordance wit h t he provisions of t his paragraph ( b) ( 4) are waived. ) ; Com m on w e a lt h v. Lor d, 719 A.2d 306 ( Pa. 1998) . Order affirm ed. Judgm ent Ent ered. Joseph D. Selet yn, Esq. Prot honot ary Dat e: 2/ 3/ 2014 - 5 -

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