J-S59024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRETT ALAN SHEARD

Appellant No. 3366 EDA 2013

Appeal from the PCRA Order October 31, 2013

In the Court of Common Pleas of Wayne County

Criminal Division at No(s): CP-64-CR-0000130-2009 

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 12, 2014

Brett Alan Sheard appeals pro se from the order entered in the Court 

of Common Pleas of Wayne County dismissing his petition filed under the 

Post Conviction Relief Act (“PCRA”).1 The PCRA court denied Sheard’s PCRA 

petition on the ground that the issues raised therein were previously 

litigated. After careful review, we affirm.

On October 8, 2009, Sheard pled guilty to one count each of 

involuntary deviate sexual intercourse (“IDSI”),2incest,3and indecent 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 4302.
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assault,4in connection with sexual acts Sheard performed on his daughters, 

ages three and five. Following a Megan’s Law hearing, the court determined 

Sheard to be a sexually violent predator (SVP), and imposed an aggregate 

sentence of 16 to 35 years’ imprisonment. Following the denial of his postsentence motion, Sheard filed a direct appeal, challenging his SVP 

designation as well as the discretionary aspects of his sentence. This Court 

affirmed Sheard’s judgment of sentence on November 24, 2010. 

Commonwealth v. Sheard, 22 A.3d 1080 (Pa. Super. 2010) (unpublished 

memorandum). Subsequently, on May 19, 2011, Sheard filed a PCRA 

petition. The PCRA court dismissed Sheard’s petition on November 6, 2013. 

This timely appeal followed.5

On appeal, Sheard presents the following issues verbatim for our 

review:

1. Did the trial court err in finding Sheard to be a sexually 

violent predator within the meaning of the statute, as said 

finding was against the weight of the evidence presented at 

sentencing?

2. Did the trial court err in sentencing Sheard to an aggregated 

[sic] sentence of 192 months to no more than 420 months?

3. Did the trial court err in sentencing Sheard with being a 

previous offender when he was involuntarily incarcerated in 

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4 18 Pa.C.S. § 3126(a)(7).

5 We note that Sheard filed an amendment to his brief on September 9, 

2014, which raises five additional issues on appeal. However, these 

challenges are waived because they were not preserved for appeal, nor does 

Sheard advance any argument in support thereof. See Pa.R.A.P. 302.
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SCI Waymart for psychological evaluation, not to serve out a 

sentence?

4. Did the trial court err in ordering Sheard’s sentence on count 

13 of the information and count 31 of the information to run 

consecutive to the sentence on count 1?

Brief of Appellant, at 2.

We are guided by the following principles in our review of this appeal. 

“Our standard of review regarding a PCRA court’s order is whether the 

determination of the PCRA court is supported by the evidence of record and 

is free of legal error. The PCRA court’s findings will not be disturbed unless 

there is no support for the findings in the certified record.” 

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal 

quotation marks and citations omitted). “The PCRA court’s factual 

determinations are entitled to deference, but its legal determinations are 

subject to our plenary review.” Commonwealth v. Johnson, 966 A.2d 

523, 532 (Pa. 2009) (internal quotation marks and citations omitted). 

Additionally, a PCRA petitioner must adhere to certain pleading and proof 

requirements. 

In order to be eligible for PCRA relief, the petitioner must prove 

by a preponderance of the evidence that his conviction or 

sentence resulted from one or more of the enumerated 

circumstances found at 42 Pa.C.S. § 9543(a)(2) (setting forth 

the eligibility requirements of the PCRA). Further, the petitioner 

must demonstrate that the issues raised in his PCRA petition 

have not been previously litigated or waived. Id. at § 

9543(a)(3). An issue has been previously litigated if “the 

highest appellate court in which the petitioner could have had 

review as a matter of right has ruled on the merits of the issue.” 

Id. at § 9544(a)(2). A PCRA claim is waived “if the petitioner 

could have raised it but failed to do so before trial, at trial, [. . 
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.], on appeal or in a prior state post-conviction proceeding.” Id.

at § 9544(b). 

Commonwealth v. Martin, 5 A.3d 177, 182-83 (Pa. 2010).

Our review of the record indicates that the issues Sheard raises on 

appeal have been previously litigated. In Commonwealth v. Sheard, 

supra, this Court addressed Sheard’s challenges to his SVP designation as 

well as the discretionary aspects of his sentence. As noted supra, this Court 

affirmed Sheard’s judgment of sentence. In addition, we found the appeal 

to be frivolous, and granted counsel’s petition to withdraw. Because the 

issues Sheard now raises on appeal have been previously litigated, he is 

ineligible for post-conviction relief. See 42 Pa.C.S. § 9544(a)(2); see also 

Commonwealth v. Bond, 630 A.2d 1281, 1282 (Pa. Super. 1993) (claims 

finally litigated where discussed thoroughly by Superior Court on direct 

appeal). Accordingly, we must dismiss Sheard’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2014