Com. v. Grier

• Decision Date: 20 November 1991
• Citation: 599 A.2d 993,410 Pa.Super. 284
• Parties: COMMONWEALTH of Pennsylvania v. Lawrence GRIER, Appellant.
• Court: Pennsylvania Superior Court

Page 993

599 A.2d 993

410 Pa.Super. 284

COMMONWEALTH of Pennsylvania v. Lawrence GRIER, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 15, 1991.

Filed Nov. 20, 1991.

Robert M. Barrett, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.

Before BECK, JOHNSON and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from an order entered on April 30, 1991, denying appellant's petition for post-conviction relief. On appeal, appellant contends that he is entitled to relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, because: (1) the trial court erred in revoking appellant's probation; (2) appellant's counsel was ineffective for failing to introduce favorable evidence at the time of the revocation hearing; and (3) appellant's counsel was ineffective for failing to file a post-sentencing motion to preserve sentencing issues. For the following reasons, we affirm the order dismissing appellant's claim for post-conviction relief.

Appellant pleaded guilty to two counts of criminal trespass ¹ and one count of criminal mischief ² on June 15, 1988. After conducting a colloquy, the court accepted appellant's plea and sentenced appellant to two concurrent terms of two years probation.

On August 16, 1990, during the term of appellant's probation, appellant pleaded guilty to a new charge of criminal trespass. ³ This constituted a violation of probation. Consequently, his probation was revoked at a probation violation hearing on September 26, 1990, and appellant was sentenced to two consecutive terms of incarceration of two-and-one-half-to-five years. No post-sentencing motions were filed, and no appeal taken. However, on December 31, 1990, appellant filed a pro se petition under the PCRA, alleging that his counsel was ineffective and that his sentence was excessive. On January 8, 1991, an amended PCRA petition was filed by court-appointed counsel, alleging that the trial court erred in revoking his probation. On April 30, 1991, the court dismissed appellant's PCRA petition without a hearing, after concluding that there existed no genuine issue of material fact and that appellant presented no claims entitling him to relief under the PCRA. Opinion, Bigley, J., 6/19/91, at 3-4. This timely appeal followed.

Appellant's first contention on appeal is that the court erred in revoking his probation. As a preliminary matter, we must determine whether this claim is cognizable under the PCRA. The PCRA limits the types of claims that are cognizable. Thus, the petitioner must "plead and prove by a preponderance of the evidence" that the conviction or sentence resulted from one or more of eight specified circumstances. See 42 Pa.C.S.A. § 9543(a)(2)(i)-(vii).

Appellant's claim is that his probation was improperly revoked. The only PCRA category under which this claim could arguably be brought is § 9543(a)(2)(vii), which governs "imposition of sentences greater than the lawful maximum." However, appellant has made no attempt to conform his arguments to the requirements of the PCRA. Furthermore, appellant does not argue that the sentence imposed was unlawful, i.e., greater than the lawful maximum, ⁴ nor does he dispute that he violated his probation. Rather, he argues that the trial court, in revoking his probation, failed to consider "the existence of unusual circumstances ... that the Appellant's initial conviction and subsequent arrest represented isolated incidents rather than a pattern of behavior." Appellant's Brief at 6. This claim is not cognizable under the PCRA.

Appellant's last two contentions involve the effectiveness of his counsel. Appellant first argues that his counsel was ineffective for "failing to introduce favorable evidence at the time of the revocation hearing," Appellant's Brief at 7. Secondly, appellant argues that his counsel was ineffective for failing to file a motion to modify sentence. Id. Again, we must determine whether these claims are cognizable under the PCRA.

A claim for ineffectiveness may be raised in a PCRA petition if the ineffectiveness "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543(a)(2)(ii). We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an "innocent individual" has been convicted. See Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990) (contention of ineffectiveness for failing to preserve insufficiency of evidence issue was cognizable because it raised issue of possible innocence). We have held that the language in the PCRA referring to ineffectiveness claims constitutes "a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania." Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA provision to broader language in predecessor Post Conviction Hearing Act).

This court recently held that an ineffective assistance of counsel claim regarding counsel's performance at sentencing and failure to preserve the issue of an excessive sentence was not cognizable under PCRA. InCommonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990), the court determined that counsel's failure to put forth mitigating factors for the trial court to consider in sentencing did not constitute a claim for ineffectiveness under the PCRA, as the claim only raised an issue as to the discretionary aspects of the sentence. Thus, the claim did not render the adjudication unreliable as to the ultimate guilt or innocence of the petitioner. Id., 398 Pa. Superior Ct. at 99-100, 580 A.2d at 860. See also Commonwealth v. Weinder, 395 Pa.Super. 608, 626-27, 577 A.2d 1364, 1374 (1990) (it is not enough for appellant to show that he suffered some prejudice from counsel's inaction because purpose of PCRA is to prevent fundamentally unfair conviction; appellant must show that inaction rendered trial result inherently unreliable). Compare Commonwealth v. Pitts, 397 Pa.Super. 387, 394-95, 580 A.2d 352, 355-56 (1990) (allegation of ineffective assistance of counsel for failure to seek severance of charges, failure to allow petitioner to testify and failure to pursue particular defense not cognizable); Commonwealth v. Dukeman, 388 Pa.Super. 469, 471, 565 A.2d 1204, 1205 (1989) (allegation of ineffective assistance of counsel for failure to file motion to dismiss for violation of Rule 1100 not cognizable); Commonwealth v. Lyons, 390 Pa.Super. 464, 469, 568 A.2d 1266, 1269 (1989) (allegation of ineffective assistance of counsel for failure to preserve issue of defective preliminary hearing not cognizable), allocatur denied, 525 Pa. 663, 583 A.2d 792 (1990).

In the instant case, neither of appellant's contentions raises an issue going to his ultimate guilt or innocence. Appellant's first contention is that trial counsel was ineffective by failing to introduce favorable evidence at the time of the revocation hearing. ⁵ Appellant does not explain how this failure undermined the truth-determining process, nor does he allege that it prevented a reliable determination as to his guilt or innocence. Rather, it appears from subsequent paragraphs in his brief that appellant is arguing that the allegedly favorable evidence would have affected his sentence after his probation was revoked. Thus, this ineffectiveness claim is not cognizable under the PCRA.

Similarly, appellant's final contention, that counsel was ineffective for failing to preserve the issue of...