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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

STANLEY DAVID KAMINSKI JR.

Appellant No. 768 EDA 2019

Appeal from the PCRA Order Entered February 8

, 2019

In the Court of Common Pleas of Bucks County

Criminal Division at No: 0007134

- 2015

BEFORE: STABILE, NICHOLS, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED MAY 20, 2020

Appellant, Stanley David Kaminsky, Jr., appeals from the February 8,

2019 order denying his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. 9541

- 46

. We affirm.

On March 21, 2016, Appellant pled guilty to homicide by vehicle while

driving under the influence. The incident occurred on July 1, 2015 when

Appellant, while intoxicated, drove his 2005 Saturn off the road and into a

wooded area. Victim Todd Rubin

, seat ed in the front passenger seat, was

pronounced dead at the scene. Appellant and the two backseat passengers

,

J acob Winter and S ummer DeCastro

, survived and were removed from the

vehicle by mechanical extrication. W inter s uffered a broken neck, broken arm

,

a fractured hip, and a severe concussion. Winter t old police that he asked

Appellant to slow down when the car approached 90 miles per hour, butJ

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Appellant sped u p to 110 miles per hour. W inter a lso told police that Appellant

asked him to tell them he l ied about the vehicle ’s rate of speed, in order to

help Appellant with his defense. Police investigation revealed that the car was

moving 89 to 99 miles per hour when it crashed into a ditch, after it was

already off the road and losing momentum. DeCastr o s uffered fractured

vertebrae, fractured, ribs, a fractured pelvis, and a severe concussion.

Appellant’s blood alcohol content was .128. He also tested positive for

marijuana and synthetic marijuana.

Sentencing took place immediately after the guilty plea. The trial court

imposed an aggregate sentence of 7 to 14 years of incarceration. Appellant

filed a motion for reconsideration, which the trial court denied after a June 7,

2016 hearing. This Court affirmed the judgment of sentence on February 28,

2017, concluding that Appellant waived his challenge to the trial court ’s

sentencing discretion. Our Supreme Court denied allowance of appeal on

August 14, 2017.

Appellant filed a timely first PCRA peti tion on April 12, 2018. Private

counsel filed an amended petition on October 24, 2018. The PCRA court

conducted hearings on November 27, 2018 and February 5, 2019. The PCRA

court denied relief on February 8, 2019, and this timely appeal followed.

Appel lant presents two questions:

1. Where counsel knew that Appellant was going to be

sentenced on the same day he was going to plead guilty in a

serious DUI matter where one person was killed and three were

injured, yet failed to draft a sentencing memorand um and failedJ

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to have [Appellant] evaluated by a psychotherapist, and present

that person ’s report and/or testimony, despite the fact that

Appellant had serious mental health and drug and alcohol issues,

especially where trial counsel acknowledged that he had used a

mental health expert in a similarly serious DUI case, was counsel’s

performance constitutionally deficient and outside the norm that

reasonable counsel would have done?

2. Was counsel ineffective for failing to address the science

underlying t he cases in Miller v. Alabama

, 132 S. Ct. 2455

(2012), Roper v. Simmons

, 543 U.S. 551 (2005), Graham v.

Florida

, 560 U.S. 48 (2010), reflecting that the executive

functioning of the brain does no t develop until age 25, especially

since counsel acknowledged that he had used this argument in

other cases and knew that the factor of youth, including the

impetuousness, recklessness, and failure to appreciate the

consequences of their actions, was a significant mitigating factor

for [Appellant], who was 22 years old at the time of the accident?

Appellant’s Brief at 2

- 3.

We review the PCRA court’s order for record support and error of law.

Commonwealth v. Williams

, 828 A.2d 981, 987 (Pa. 2003)

. To prevail on

a claim of ineffective assistance of counsel, a petitioner must plead and prove:

(1) that the underlying issue is of arguable merit; (2) that counsel had no

reasonable strategic basis for the action or inaction; and (3) that counsel’s

err or prejudiced the petitioner, such that the outcome of the underlying

proceeding would have been different but for counsel’s error.

Commonwealth v. Spotz

, 84 A.3d 294, 311

- 12 (Pa. 2014). We presume

that counsel was effective, and the petitioner bears the burden of proving

otherwise

. Id. A petitioner’s failure to prove any of the three prongs will be

fatal to the petition. Id. Here, Appellant claims he would have received a

more lenient sentence had counsel presented expert testimony to theJ

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sentencing court. In particular, Appellant claims sentencing counsel should

have presented evidence of Appellant’s mental health history and substance

abuse.

At sentencing, Appellant acknowledged the facts recited above,

including that he asked Winter to lie for him. N.T. Sentencing, 3/21/16, at

26. Appellant had prior convictions for burglary, theft, DUI, and disorderly

conduct. Id. The trial court also liste ne d to statements from the deceased

victim’s family. Id. at 29

- 34. Defense counsel spoke about Appellant’s

difficult upbringing, including the early death of Appellant’s father and

Appellant’s subsequent suicide attempt and hospitalization. Id. at 36

- 37.

Appellant’s mother also testified about Appellant’s depression after his father’s

death

, including a drug overdose that led to Appellant’s hospitalization. Id.

at 40. Appellant took the stand and expressed his remorse. Id. at 42

- 45.

Prior to imposing sentence, the trial court spoke as follows:

Okay. In imposing sentence, I certainly consider

[Appellant’s] age. I consider the nature of his prior record, which

is not just driving under the influence related. I consider the fact

that he’s already served a county sentence. I consider what I

know of his history. I understand that he su ffered a difficult loss

in his life.

I consider the fact that he’s had drug and alcohol issues.

However, he’s had opportunities in the system to address those

issues. These are the very saddest cases that I think we do in the

justice system. Young peo ple

— the young people who survived

this, lives are changed forever. This is more than just getting in

the car and having had too much to drink. This is someone who

already had a driving under the influence charge.J

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- [Appellant] not only had alcohol in his system but he had

illegal drugs in his system and a combination of those in his

system. And most egregiously, despite being asked to slow down,

he did not. In so doing he put multiple lives in danger and took

the life of one human being.

Id. at 47

- 48.

At the PCRA hearing, defense counsel acknowledged that he did not

obtain records related to Appellant’s mental health and substance abuse

related hospitalizations. N.T. Hearing, 11/27/18, at 18. Counsel stated that,

in his interaction with Appellant, App ellant did not appear to be delusional or

incompetent. Id. at 19. Appellant appeared not to be as severely mentally

ill as other clients counsel represented in the past. Id. at 73

- 74. Thus,

counsel did not seek a mental health evaluation. I d. He also did not seek

medical records from the institutions that treated Appellant. Id. at 41.

On cross

- examination, counsel noted that the Commonwealth dropped

one count each of third

- degree murder and aggravated assault in exchange

for Appellant’s pl ea. Id. at 51. Counsel advised Appellant on the possibility

of consecutive sentences because of the number of victims. Id. at 55

- 57.

The trial court imposed standard range, mostly concurrent sentences in

arriving at the 7 to 14 year aggregate. Id. at 53

- 54. Counsel explained that

he did not ask the trial court to order a pre

- sentence investigation because

Appellant was on parole for a burglary conviction at the time of the present

offense, and counsel did not believe the pre

- sentence investigation wou ld

have been favorable. Id. at 75.J

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At the second PCRA hearing, Appellant presented the testimony of John

Markey, a licensed psychologist. Markey testified that Appellant has major

depressive disorder and ADHD. N.T. Hearing, 2/5/19, at 20

- 21. Appellan t

has a history of excessive consumption of alcohol and other medication,

although he had been sober for several months prior to the incident in

question. Id. at 18

- 19, 42. Markey believed that some of Appellant’s

problems could be residual from a head i njury Appellant sustained when he

was ten years old. Id. at 25. Given Appellant’s history of difficult family

circumstances, alcohol abuse, and depression, Markey believed Appellant

need s more treatment than he received in the past. Id. at 33.

In his brief, Appellant argues that counsel’s performance was deficient

because counsel failed to present to the sentencing court a sufficient amount

of detail about Appellant’s troubled past. Doing so, Appellant argues, would

have resulted in a lesser sentence. We observe that trial courts enjoy wide

discretion in crafting a sentence, and that sentence will be disturbed on appeal

only where the judge abuses that discretion. Commonwealth v. Hoch

, 936

A.2d 515, 517

- 18 (Pa. Super. 2007). To demonstrate an abuse of discretion,

“ the appellant must establish, by reference to the record, that the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision. ” Id.J

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In essence, Appellant’s argument is that he would have received a lesser

sentence but for counsel’s failure to present additional miti gating evidence at

sentencing. 1 As the PCRA court noted, however, the sentencing court was

aware of App ellant’s mental health issues and his difficult upbringing. The

sentencing court had to weigh that against the circumstances of the offense,

including Appellant’s decision to speed up after Winter asked him to slow down

and Appellant’s attempt to get Wint er to lie for him. Finally, we note that the

sentencing court imposed standard range, mostly concurrent sentences.

Appellant received an aggregate 7 to 14 years of incarceration for an incident

in which one of his passengers was killed and two others wer e severely

injured. Appellant has failed to establish that greater elaboration on his

mental health

, substance abuse, and difficult life circumstances would have

led to a lesser sentence (or led this Court to conclude on direct appeal that

the trial court abused its sentencing discretion). Appellant’s first argument

fails because he cannot establish that counsel’s alleged ineffectiveness

prejudiced him.

_________________ __________ ______ ____ _______

1 A PCRA petitioner can obtain relief by pleading and proving “[i] neffective

assistance of counsel which, in the circumstances of the particular case, 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). In

other contexts, we have recognized that ineffectiveness resulting in a longer

sentence is cognizable under the PCRA. See Commonwealth v. Reyes

Rodgiguez , 111 A.3d 775 (Pa. Super. 2015), appeal denied , 123 A.3d 331

(Pa. 2015).J

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In his second assertion of error, Appellant claims counsel was ineffective

for failing to address the science underlying the United Supreme Court’s

decision in Miller v. Alabama

, 132 S. Ct. 2455 (2012), Graham v. Florida

,

560 U.S. 48 (2010), and Roper v. S immons

, 543 U.S. 551 (2005). In brief,

Miller held that the Eight h Amendment’s 2 prohibition of cruel and unusual

punishment prohibits sentences life imprisonment without parole offenders

less than 18 years old. Graham held that the Eighth Amendment prohi bits

sentence of life without parole to juveniles who do not commit a homicide.

Roper held that the Eight Amendment prohibits execution of juvenile

offenders. These cases have no direct application here because Appellant was

just shy of his 23 rd birthday at the time of the offense and the trial court did

not impose capital punishment or life imprisonment without parole.

Appellant argues, however, that the science underlying these decisions

dictates leniency in his case because he his brain was not fully developed at

the time of the offense

. This argument fails for the same reasons as the first.

Even if counsel had relied on Miller

, Graham

, or Roper

, nothing in those

cases would have supported a conclusion that an aggregate sentence of 7 to

14 years was outside of the trial court’s sentencing discretion. Appellant will

be eligible for parole at age 30, and his maximum sentence will expire at age

_________________ __________ ______ ____ _______

2 “ Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted. ” U.S. C ONST . amend. VIII

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37. He was not a juvenile offender, and t he trial court’s sentence has not

deprived him of a second chance, as was the case in Miller

, Graham

, and

Roper

. Appellant has failed to establish that his sentence would have been

shorter but for counsel’s ineffectiveness

. He therefore cannot establish

prejudice.

For all of the foregoing reasons, we affirm the PCRA c ourt’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2020