J

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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CAMDYN DAVIS

- OSTERHOUDT

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1251 MDA 2021 Appeal from the PCRA Order Entered September 17, 2021 In the Court of Common Pleas of Tioga County Criminal Division at CP

- 59

- CR

- 0000333

- 2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J. *
MEMORANDUM BY MURRAY, J.: FILED APRIL 01, 2022

Camdyn Davis

- Osterhoudt (Appellant) appeals from the order denying

his first petition filed pursuant to the Post Conviction Relief Act (PCRA). See

42 Pa.C.S.A. §§ 9541

- 9546. We affi rm.
This Court previously detailed the factual and procedural history of this

case as follows:

On September 6, 2018, Appellant and Naseer Timothy Burzak (Co

- Defendant) entered the victims’ residence armed with an assault rifle and handgun. Appellant and Co

- Defendant were dressed in black, wearing gorilla masks and black gloves. Holding the victims at gunpoint, they took $150 in cash, a handgun, a wallet, a knife, and a cell phone.

Appellant and Co

- Defendant were arrested and charged with
numerous offenses, including robbery, criminal conspiracy, and unlawful restraint. On May 29, 2019, Co

- Defendant entered a guilty plea to one count of robbery, and was sentenced, on

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- 2

-

September 12, 2019, to a term of intermediate punishment

. On August 5, 2 019, Appellant entered a guilty plea to one count of robbery with intent to cause immediate serious injury in exchange for the nolle pros of his remaining charges.

A sentencing hearing was held on October 28, 2019. The trial court acknowledged it had re viewed Appellant ’ s pre
- sentence investigation report (“PSI”), and the parties agreed the sentencing guidelines called for a standard range sentence of 45 to 63 months ’ imprisonment. Appellant argued “ he should probably receive something less[ ] ” than Co

- D efendant, because “ as a matter of fairness, ” Co

- Defendant [allegedly] “ had a prior record, ” and Appellant did not. [N.T., 10/28/19, at 5]. Notwithstanding this argument, the trial court imposed a standard range sentence of 45 to 90 months ’ imprisonment.

Commonwealth v. Davis

- Osterhoudt , 248 A.3d 464, at **1

- 2 (Pa. Super.

Jan. 5, 2021) (unpublished memorandum) (emphasis added; citations to

record and footnotes omitted) ; see also id. at *2 n.6 (stating that neither

Appellant nor Co

- Defendant had a prior criminal record).

On November 8, 2019, Appellant , through counsel (prior counsel), filed

an untimely post

- sentence motion. Appellant argued he “ should have

received the same sentence or perhaps a more lenient sentence than [] Co

Defendant,” because “the conduct engaged in [by] both of [them] was

identical

. ” Post

- Sentence Motion, 11/8/19, ¶ ¶ 7, 9

. T he trial court held a

hearing and denied the post

- sentence m otion on February 1 4 , 2020

. Appellant filed an untimely notice of appeal on March 31, 2020 , followed by

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal

.J

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- 3

-

On direct appeal , Appellant argued the trial court “ abused its discretion

by imposing a harsher sentence than that received by his C o
- D efendant.”

Davis

- Osterhoudt , 248 A.3d 464, at *1

. We quashed, reasoning:

Appellant was sentenced on October 28, 2019. He then filed
an untimely post

- sent ence motion on November 8th. As a result, the appeal period was not tolled. See [ Commonwealth v. ] Green , 862 A.2d [613,] 618 [(Pa. Super. 2004) ( en banc ) (“ since [a]ppellant did not file a timely post

- sentence motion, her appeal period began to run from the date sentence was imposed”) ; see also Pa.R.A.P. 903(a) (30

- day appeal period) ]. Appellant’s notice of appeal was then due November 26, 2019, 30 days after the imposition of sentence. See Pa.R.Crim.P. 720(A)(3). However, Appellant filed his noti ce of appeal on March 31, 2020, more than 150 days after sentencing. Appellant’s notice of appeal was therefore untimely filed.

Davis

- Osterhoudt , supra , at *7 (emphasis in original; footnotes omitted).

We further stated :
Assuming arguendo this Court had jurisdiction to consider the merits of Appellant’s case, we would conclude his disparate sentence claim is waived for failure to include the argument in his 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(ii) (litigants are required to “concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge.”); see also Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775, 780 (Pa. 2005) (“issues not raised in a Pa.R.A.P.1925(b) statement will be deemed waived.”). Appellant’s 1925(b) concise statement alleges the trial court imposed a manifestly excessive sentence by failing to consider “all relevant statutory sentencing factors[.]” Appellant’s Concise Stateme nt of Matters Complained of on Appeal Pursuant to Rule 1925(b) Order, 4/23/20. However, in his brief, Appellant simply argues the court abused its discretion in imposing a “far greater and more harsh sentence than” Co

- Defendant. Appellant’s Brief at 12. Thus, his disparate sentence claim would be waived. Moreover, we note “it has never been a rule in this Commonwealth that co
- defendants are required to receive equal sentences[.]” Commonwealth v. Krysiak , 369 Pa. Super. 293, 535 A.2d 165, 167 (Pa. Super

. 1987) (citation omitted).J

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-

Davis

- Osterhoudt , supra , at *7 n.11.

On January 2 5, 2021 , Appellant filed a timely pro se PCRA petition

. The

PCRA court appointed counsel, who filed an amended PCRA petition on March

24, 2021. Appellant asserted ineffective assistance of prior counsel for failing

to timely file a direct appeal and preserve Appellant’s sentencing issue

. See

Amended PCRA Peti tion, 3/24/21, at 3

- 4; see also 42 Pa.C.S.A. §

9543(a)(2)(ii) (relief for ineffective assistance of counsel ) . Appellant further

claimed the court impos ed a sentence greater than the lawful maximum

. Appellant “requested that his sentence be modified to generally conform to

the sentence imposed upon his Co

- Defendant.” Amended PCRA Petition,

3/24/21, at 3 ; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (relief for unlawful

sentences). On May 4, 2021, the Commonwealth filed an answer in

opposition. T he PCRA court held a hearing on June 11, 2021

.
On September 17, 2021, the PCRA court denied Appellant’s petition. In

an accompanying opinion , the PCRA court addressed the disparity in the

sentences of Appellant and Co

- Defendant:

At the time [the trial] court imposed sentence upon Appellant’s Co

- Defendant, the court erred when it imposed a county intermediate punishment sentence upon Appellant’s Co

- Defendant . Neither Co

- Defendant nor Appellant met the statutory definition of an “eligible offender” for Co unty intermediate punishment pursuant to 42 Pa.C.S.A. § 9802 since their robbery convictions precluded both from the program. Prior to imposing sentence upon Appellant, the court became aware of this error . Rather than compound the issue by sentencing Ap pellant to a likewise illegal sentence, the court instead imposed a term of imprisonment upon him for a minimumJ

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-

period of 45 months [to] a maximum period of 90 months. This sentence is at the very bottom of the guideline range for the deadly weapon enhanc ement that this court determined applied based upon Appellant’s possession of a deadly weapon.

PCRA Court Opinion, 9/17/21, at 2 n.4 (emphasis added)

.
In addition , the PCRA court rejected Appellant’s claim of ineffectiveness

of prior counsel with respect to Appellant’s “disparate sentencing” claim , concluding Appellant failed to establish that the outcome of his direct appeal

would have been different had prior counsel preserved the claim

. S ee id. at

5

- 7 ; Commonwealth v. Treiber , 121 A.3d 435, 445 (Pa. 2015) (to prove

ineffectiveness, the petitioner must prove, inter alia , “ he suffered prejudice as

a result of counsel’s error, with prejudice measured by whether there is a

reasonable probability the result of the proceeding would have been

differ ent.”). The PCRA court reasoned :
Notwithstanding prior counsel’s failure to preserve the claim in the trial court and failure to correctly frame the issue in his 1925(b) Statement, the Superior Court[, on direct appeal,] correctly identified the claim as a disparate sentence claim. Moreover, the Superior Court continued to note that “ it has never been a rule in this Commonwealth that co

- defendants are required to receive equal treatment, ” [ Davis

- Osterhoudt , supra , at *7 n.11 ] citing Krysiak [, supra ].

PCRA Court Opinion, 9/17/21, at 7

. Appellant timely appealed. Both the PCRA court and Appellant complied

with Pa.R.A.P. 1925. On appeal, Appellant presents three issues for review:

I. Did the trial court err in concluding that the general prohibition again st significant disparities in the sentences of
co
- defendants who are sentenced by the same judge, absentJ

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- facts

- of

- record supporting the disparity, does not apply when the disparity is the result of an earlier grant [of] leniency?

II. D id the trial court err i n concluding that the Commonwealth’s failure to challenge the erroneous imposition of a county intermediate punishment sentence when sentencing one defendant is not equally binding upon the Commonwealth with respect to an identically situated co

- defendant?

III. D id the trial court err by relying on dicta in the Superior Court’s January 5, 2021 decision to conclude that [Appellant] was not prejudiced by prior counsel’s failure to preserve a challenge to [Appellant’s] sentence premised on the disparity between his sentence and his codefendant’s sentence?

Appellant’s Brief at 6 (issues re ord ered , capitalization omitted )

. 1

“Our standard of review for issues arising from the denial of PCRA relief

is well

- settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error .” Commonwealth v. Hand , 252 A.3d 1159, 1165 (Pa. Super. 2021) (citation omitted). “[W]e will not

disturb the findings of the PCRA court unless those findings have no support

in the certified record.” Commonwealth v. Rivera , 154 A.3d 370, 377 (Pa.

Super. 2017) ( en banc ).

As Appellant’s issues are related, we address them together. Appellant

argues the trial court imposed an unlawful sentence where Appellant “ and his

Co

- Defendant committed the same crime, entered essentially identical pleas

a s part of essentially identical plea bargains, and had the same prior record

score of zero,” but Co

- Defendant received a lenient sentence of intermediate

_________________ __________ ______ ____ _______

1 The Commonwealth has not file d a reply brief.J

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punishment, in contrast to Appellant’s state prison sentence

. Appellant’s Brief

at 29 . A ccording to Appellant, “[e] ven if [Appellant’s] sentence would have

been legal in isolation, the extreme and disparate impact on the two

identically

- situated co

- defendants renders it illegal.” Id. at 24 (emphasis

omitted). Appellant contends the PCRA court “ also failed to disclose on the

record any basis for the resulting sentencing disparity until it issued its
September 17, 2021 Opinion in support of dismissing [Appellant’s] PCRA

petition.” Id. at 17 (emphasis in original) (citing PCRA Court Opinion,

9/17/21, a t 2 n.4 ) . Finally, Appellant claims “the trial court erred in concluding
that the Commonwealth’s failure to challenge the erroneous imposition of a

county intermediate punishment sentence when sentencing one defendant[,

i.e. , Co

- Defendant,] is not equally binding upon the Commonwealth with

respect to an identically situated co

- defendant [.] ” Id. at 27.

We first examine whether Appellant’s claims are cognizable under the

PCRA. Although Appellant claims to be challenging the legality of his sentenc e , his argument ( the trial court improperly imposed disparate sentences on

identically situated co

- defendants ) challeng es the discretionary aspects of his

sentence

. See Appellant’s Brief at 21

- 23 (analysis of discretionary aspects of

sentencing claims) ; C ommonwealth v. Cleveland , 703 A.2d 1046, 1048
(Pa. Super. 1997) (claim “alleging an unexplained disparity between

[defendant’s] sentence and that of a co

- defendant” implicates the

discretionary aspects of sente ncing)

. “ C hallenges to the discretionary aspectsJ

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-

of sentencing are not cognizable under the PCRA .” Commonwealth v.

Fowler , 930 A.2d 586, 593 (Pa. Super. 2007) (citing 42 Pa.C.S.A. §

9543(2)(vii) ; Commonwealth v. Evans , 866 A.2d 442, 444

- 45 (Pa. Super.

2005) ). Thus, Appellant’s claims are not cognizable.

Appellant additionally claims that prior counsel was ineffective for failing

to preserve his disparate sentencing issue on direct appeal. See , e.g. , Appellant’s Brief at 1 4

- 16, 20

- 21 , 29

. This claim , which Appellant preserved,

see Amended PCRA Petition, 3/24/21, ¶¶ 13

- 21 , is cognizable under the

PCRA

. Commonwealth v. Sarvey , 199 A.3d 436, 455 (Pa. Super. 2018)

(“ claims implicating the discretionary aspects of sentencing raised in the

context of an ineffectiveness claim are cognizable under the PCRA .”).

Regarding ineff ectiveness, t he Pennsylvania Supreme Court has stated:

Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s pe rformance was deficient and that such deficiency prejudiced him. ... [T]o prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the p etitioner suffered actual prejudice as a result. If a petitioner fails to prove any of these prongs, his claim fails. Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. Where matters of strategy and tactics are concerned, a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a pote ntial for success substantially greater than the course actually pursued. To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have bee n different. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.J

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-

Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) (citations omitted).

Here, Appellant argues :
It is undisputed that prio r counsel (i) failed to file a timely post

- sentence motion, (ii) failed to file a timely appeal, and (iii) failed to properly preserve a challenge premised specifically on disparate sentencing. A colorable and reviewable challenge to the disparity between [Appellant’s] sentence and that of his Co

Defendant existed, and [Appellant] was therefore prejudiced when he was denied the opportunity to have the Superior Court consider that issue.
Appellant’s Brief at 16

. Appellant further assert s the PCRA court “ erred in concluding that prior

counsel’s error in negligently waiving the disparate

- sentencing issue was

harmless[.]” Id. at 14 . Specifically, Appellant alleges the court erred by

relying on this Court’s prior statement on direct appeal that “it has never been

a rule in this Commonwealth that co
- defendants are required to receive equal

sentences,” Davis

- Osterhoudt , supra , at *7 n.11 (citation omitted) ,
because “ such stateme nt is mere dicta

. ” Appellant’s Brief at 14

. To succeed on an ineffectiveness claim for failure to preserve a challenge

to the discretionary aspects of sentencing, the petitioner must demonstrate

the underlying sentencing claim merits relief. See Commonwealth v.

Jones , 942 A.2d 903, 906 (Pa. Super. 2008) (“[I]f the PCRA court can

determine from the record that the sentence was not excessive, ... then there
is no underlying merit to the ineffectiveness claim and the claim must fail.” ) ;

see also Commonwealth v. Reaves , 923 A.2d 1119, 1131

- 32 (Pa. 2007)J

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-

( a claim of ineffectiveness for failure to preserve discretionary sentencing

issue requires showing of reasonable probability that sentencing court would

have imposed lesser sentence). “ S entencing is a matter vested in the sound

discretion of the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Barnes , 167 A.3d 110, 122 n.9 (Pa. Super. 2017) ( en banc ) (citation omitte d).

Regarding disparate sentences of co

- defendants ,

a defendant is not entitled to the same sentence as that imposed on another person involved in the same crime. Commonwealth

v. Mastromarino , ... 2 A.3d 581, 589 (Pa. Super. 2010). Rather, “when there is a disparity between co

- defendants’ sentences, a sentencing court must give reasons to each defendant explaining why they received their individual sentences.” Id. (quotation marks and quotation omitted).

Commonwealth v. Ali , 197 A.3d 742, 764 (Pa. Super. 2018) ; see also

Commonwealth v. Szczesniewski , 591 A.2d 1055, 1056 (Pa. Super. 2010).

However, t he sentencing court is not required to justify the disparity with

reference to the specific sentence imposed on the co
- defendant. Cleveland ,
703 A.2d at 1048

. Here, the court stated its rationale for imposing Appellant ’ s sentence,

noting the severity of the crime and impact on the victim s, but also recognizing

Appellant ’ s you th and potential for rehabilitation. See N.T., 10 /2 8/19 , at 6
(“This of course is a horrible offense, to have someone come into your home

and threa ten you in this fashion; ... you’re a young person with a lot of life

ahead of you, and I commend you for the fact that you want to get thisJ

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resolved and move on with your working life and with your family life.”). 2

Moreover, the court was informed by a PSI , see id. at 1 . I t is “presumed that

the court [wa] s aware of all appropriate sentencing factors and considerations,

and [] where the court has been so informed, its discretion should not be

disturbed.” Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa . Super.

2009 ) ( citing Commonwealth v. Devers , 546 A.2d 12, 18

- 19 (Pa. 1988)).

In sum , o ur review discloses that Appellant’s sentence

– at the low end

of the standard range of the guidelines

– was not excessive or unreasonable

.

T he record reflects that the court considered the PSI and all evidence

presented at the sentencing hearing (as well as all relevant statutory factors,

see 42 Pa.C.S.A. § 9721(b) ), and sentence d Appellant accordingly

. See , e.g. , Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) ( stating

“where a sentence is within the standard range of the guidelines , Pennsylvania

law views the sentence as appropriate under the Sentencing Code , ” and

holding sentence was not unreasonable where court had the benefit of a PSI

and imposed a standard range sentence ) ; C ommonwealth v. Raven , 97

A.3d 1244, 1254

- 55 (Pa. Super. 2014) (defendant’s standard

- range sentences

were neither unreasonable nor excessive where “the record reflects that the

[ sentencing ] court carefully considered all of the evidence presented at the
sentencing hearing.”).

_________________ __________ ______ ____ _______

2 T he court also considered defen s e counsel’s argument that Appellant “should probably receive something less” than Co

- Defendant

. Id. at 5

.J

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-

As the trial court set forth adequate reasons for Appellant ’ s sentence,

and Appellant ’s disparate sentencing issue lacks merit, prior counsel was not

ineffective

. See Jones , 942 A.2d at 907

- 08 (rejecting claim of ineffectiveness

for failure to preserve challenge to discretionary aspects of sentencing where

there was no merit to the claim ) ; see also Commonwealth v. Ligons , 971

A.2d 1125, 1156 (Pa. 2009) (counsel cannot b e deemed ineffective for failing

to raise a meritless claim).

Finally, as prior counsel was not ineffective, there is no merit to

Appellant’s claim that the PCRA court err ed by relying on language from a

footnote in Davis

- Osterhoudt , supra

. See PCRA Court Opinion, 10/27/21,

at 9 ( “ the court did not pull the dicta into this case to support its conclusion,

but instead reviewed the context of the entire portion of the dicta relied upon

by Appellant and determined that this evidence was insufficient to su stain
Appellant’s burden that [prior] counsel’s alleged ineffectiveness prejudiced

him. ” ( emphasis omitted) )

.
For the above reasons , the PCRA court dd not err in denying Appellant’s

petition for post

- conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/01/2022