J. S38004/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ORIS ALVIN BARNER, JR., : No. 1938 EDA 2015

:

 Appellant :

Appeal from the PCRA Order, May 29, 2015,

in the Court of Common Pleas of Northampton County

Criminal Division at No. CP-48-CR-0003136-2013

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 09, 2016

Oris Alvin Barner, Jr., appeals pro se from the May 29, 2015 order of 

the Court of Common Pleas of Northampton County denying his first petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. We affirm.

The PCRA court provided the following synopsis of the factual and 

procedural history:

On November 14, 2013, [appellant] pleaded 

guilty to Possession with Intent to Deliver [(“PWID”)] 

Heroin (35 [P.S.] § 780-113(a)(30)). On August 18, 

2013, . . . [appellant] was strip searched as an 

inmate of Northampton County Correctional Facility 

and was discovered to be in possession of five 

packets of heroin. Appellant was then charged with 

Contraband (18 Pa.C.S. § 5123(a.2)) and pleaded 
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guilty to this second charge on January 17, 2014.[1] 

On the same date, and upon consideration of the 

record, this Court sentenced [appellant] to the 

following: 33-66 months [imprisonment], plus four 

(4) years’ probation, on the PWID charge and 24-48 

months [imprisonment] on the Contraband charge, 

these sentences to run concurrently. On February 3, 

2015, [appellant] filed a Petition for Post-Conviction 

Relief and independent counsel was appointed to 

represent [appellant] on February 13, 2015.[2] On 

May 6, 2015, this Court received counsel’s “No-Merit 

Letter”[3] submitting that [appellant] was not 

entitled to post-conviction relief. This Court then 

reviewed the record and agreed with counsel’s 

assessment, issuing a Notice of Intent to Dismiss 

Without a Hearing on May 8, 2015. Appellant failed 

to respond to the Notice and this Court dismissed 

[appellant’s] Petition for Post-Conviction Relief on 

May 29, 2015. This pro se appeal followed.

PCRA court opinion, 8/26/15 at 1.

On June 26, 2015, the PCRA court ordered appellant to file a concise 

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

Appellant complied with the PCRA court’s order on July 15, 2015. On 

August 26, 2015, the PCRA court filed an opinion pursuant to Rule 1925(a).

Appellant raises the following issues for our review:

A. Whether [t]he Commonwealth breached the 

plea agreement with Appellant?

 

1 Appellant was arrested for PWID on August 13, 2013. (Notes of testimony, 

1/17/14 at 3.) He was in custody for the original PWID charge at the time of 

the strip search.

2 Appellant did not file any post-sentence motions, nor did he file a direct 

appeal in this case.

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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B. Whether plea counsel provided ineffective 

assistance in allowing Appellant to enter into a 

plea agreement without first investigating the 

ramifications of a subsequent charge?

C. Whether the sentence imposed violates the 

Sixth Amendment to the United States 

Constitution?

D. Whether the trial court was without discretion 

to impose a term of confinement followed by a 

consecutive term of probation?

E. Whether PCRA counsel provided ineffective 

assistance in failing to amend the pro se

petition to present the meritorious preceding 

[sic]? 

Appellant’s brief at 3.

PCRA petitions are subject to the following standard of review:

“[A]s a general proposition, we review a denial of 

PCRA relief to determine whether the findings of the 

PCRA court are supported by the record and free of 

legal error.” Commonwealth v. Dennis, 609 Pa. 

442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted). 

A PCRA court’s credibility findings are to be accorded 

great deference, and where supported by the record, 

such determinations are binding on a reviewing 

court. Id. at 305 (citations omitted). To obtain 

PCRA relief, appellant must plead and prove by a 

preponderance of the evidence: (1) his conviction or 

sentence resulted from one or more of the errors 

enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his 

claims have not been previously litigated or waived, 

id. § 9543(a)(3); and (3) “the failure to litigate the 

issue prior to or during trial . . . or on direct appeal 

could not have been the result of any rational, 

strategic or tactical decision by counsel[.]” Id.

§ 9543(a)(4). An issue is previously litigated if “the 

highest appellate court in which [appellant] could 

have had review as a matter of right has ruled on 
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the merits of the issue[.]” Id. § 9544(a)(2). “[A]n 

issue is waived if [appellant] could have raised it but 

failed to do so before trial, at trial, . . . on appeal or 

in a prior state postconviction proceeding.” Id.

§ 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

In his first issue, appellant alleges that the Commonwealth breached 

the plea agreement reached with appellant. Specifically, appellant avers 

that the Commonwealth failed “to ensure that [appellant] received the 

twenty-four month minimum sentence agreed upon, and, based upon this 

breach, [appellant] should be permitted to withdraw his guilty pleas.” 

(Appellant’s brief at 9.)4

Before we can address appellant’s first issue on its merits, we must 

first look to whether his claim has been previously litigated or waived. The 

PCRA requires that, in order for a petitioner to be eligible for relief, his or her 

claim cannot have been “previously litigated or waived.” 42 Pa.C.S.A. 

§ 9543(a)(3). The PCRA mandates that an issue is waived if “the petitioner 

could have raised it but failed to do so before trial, at trial, during unitary 

review, on appeal or in a prior state post-conviction proceeding.” 

42 Pa.C.S.A. § 9544(b). Our supreme court has stated that “a PCRA 

petitioner’s waiver will only be excused upon a demonstration of 

 

4 This appeal concerns only the sentence appellant received for his guilty 

plea to the PWID charge.
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ineffectiveness of counsel in waiving the issue.” Commonwealth v. 

Albrecht, 720 A.2d 693, 700 (Pa. 1998).

Here, appellant did not raise the issue of whether the Commonwealth 

breached the plea agreement with appellant at sentencing, through a 

post-sentence motion, or on direct appeal. Moreover, appellant did not 

allege that his failure to do so was caused by ineffective assistance of 

counsel. We, therefore, find that appellant’s first issue is waived under the 

PCRA.

In his second issue for our review, appellant avers that his plea 

counsel, Steven Mills, Esq., was ineffective because of his failure to 

“adequately investigate the facts of the case.” (Appellant’s brief at 11.)

“A criminal defendant has the right to effective

counsel during a plea process as well as during trial.” 

[Commonwealth v. Hickman, 799 A.2d 136, 141 

(Pa.Super. 2002)]. “A defendant is permitted to 

withdraw his guilty plea under the PCRA if ineffective 

assistance of counsel caused the defendant to enter 

an involuntary plea of guilty.” Commonwealth v. 

Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).

We conduct our review of such a claim in 

accordance with the three-pronged 

ineffectiveness test under section 

9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. 

§ 9543(a)(2)(ii). See [Commonwealth 

v.] Lynch[, 820 A.2d 728, 732 

(Pa.Super. 2003)]. “The voluntariness of 

the plea depends on whether counsel’s 

advice was within the range of 

competence demanded of attorneys in 

criminal cases.” Id. at 733 (quoting 

Commonwealth v. Hickman, 2002 PA 
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Super 152, 799 A.2d 136, 141 

(Pa.Super. 2002)).

In order for Appellant to prevail on a 

claim of ineffective assistance of counsel, 

he must show, by a preponderance of 

the evidence, ineffective 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. 

Commonwealth v. Kimball, 555 Pa. 

299, 724 A.2d 326, 333 (Pa. 1999). 

Appellant must demonstrate: (1) the 

underlying claim is of arguable merit; 

(2) that counsel had no reasonable 

strategic basis for his or her action or 

inaction; and (3) but for the errors and 

omissions of counsel, there is a 

reasonable probability that the outcome 

of the proceedings would have been 

different. Id. The petitioner bears the 

burden of proving all three prongs of the 

test. Commonwealth v. Meadows, 

567 Pa. 344, 787 A.2d 312, 319-20 

(2001).

Commonwealth v. Johnson, 868 A.2d 1278, 1281 

(Pa.Super. 2005).

Kersteter, 877 A.2d at 469-69. Moreover, trial 

counsel is presumed to be effective. 

Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 

463, 465 (1995).

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006).

Appellant makes an undeveloped claim that Attorney Mills was 

ineffective because he, 

should have been aware of the ramifications of the 

subsequent charge [of contraband] on the agreed 
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upon sentence. Had he sought to ascertain the 

effect of the subsequent charge, he could have 

exploited it into, at best, a drug program or at worst, 

the benefit of the bargaining position with regard to 

the plea bargain eventually entered into between the 

Commonwealth and [appellant.] In short, it would 

have been difficult, armed with these facts, for the 

Commonwealth to breach its agreement with 

[appellant.]

Appellant’s brief at 11-12. This claim does not satisfy any of the three 

prongs established by the Meadows court. Therefore, appellant’s claim of 

ineffective assistance of counsel in regards to Attorney Mills is without merit.

Under his third issue, appellant avers that the PCRA court abused its 

discretion by sentencing him to an aggravated-range sentence of 

33-66 months’ imprisonment for the PWID charge. “Issues challenging the 

discretionary aspects of a sentence must be raised in a post-sentence 

motion or by presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary aspect of a 

sentence is waived.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-

1274 (Pa.Super. 2006), quoting Commonwealth v. Tirado, 870 A.2d 362, 

365 (Pa.Super. 2005) (citation omitted).

Appellant failed to raise this issue through an objection at sentencing, 

through a post-sentence motion, or on direct appeal. This issue, therefore, 

is waived under the PCRA and we cannot consider it on its merits. 

In his fourth issue for our review, appellant challenges the legality of 

his sentence.
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“A challenge to the legality of a sentence . . . may be 

entertained as long as the reviewing court has 

jurisdiction.” Commonwealth v. Borovichka, 

18 A.3d 1242, 1254 n. 8 (Pa.Super. 2011) (citation 

omitted). It is also well-established that “[i]f no 

statutory authorization exists for a particular 

sentence, that sentence is illegal and subject to 

correction.” Commonwealth v. Rivera, 95 A.3d 

913, 915 (Pa.Super. 2014) (citation omitted). “An 

illegal sentence must be vacated.” Id. “Issues 

relating to the legality of a sentence are questions of 

law[.] . . . Our standard of review over such 

questions is de novo and our scope of review is 

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 

238 (Pa.Super. 2014) (citations omitted).

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014), appeal 

denied, 121 A.3d 494 (Pa. 2015).

In the instant appeal, the Commonwealth cites 42 Pa.C.S.A. § 9721 as 

the statute from which the PCRA court derived its authority to impose 

appellant’s sentence. (Commonwealth’s brief at 14.) Section 9721 

provides:

(a) General rule.--In determining the sentence to 

be imposed the court shall, except as provided 

in subsection (a.1), consider and select one or 

more of the following alternatives, and 

may impose them consecutively or 

concurrently:

(1) An order of probation.

(2) A determination of guilt without 

further penalty.

(3) Partial confinement.

(4) Total confinement.

(5) A fine.

(6) County intermediate punishment.

(7) State intermediate punishment.
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42 Pa.C.S.A. § 9721(a) (emphasis added). As the Commonwealth notes, 

our supreme court has held that a sentencing court may “fashion a sentence 

which includes one or more of five alternative punishments, and permits 

these punishments to be imposed consecutively or concurrently.” 

Commonwealth v. Pierce, 441 A.2d 1218, 1219 (Pa. 1982), citing 

Commonwealth v. Nickens, 393 A.2d 758 (Pa.Super. 1978) (en banc).5

In the instant appeal, we find that the sentencing court acted fully 

within its statutory authority when it sentenced appellant to a term of 

probation consecutive to a term of imprisonment for the same offense. 

Accordingly, appellant’s fourth issue is without merit.

For his fifth and final issue on appeal, appellant avers that his PCRA 

counsel, Tyree A. Blair, Esq., provided ineffective assistance for failing to 

amend appellant’s PCRA petition to raise the preceding four issues. 

Appellant raises this issue for the first time on appeal. Our supreme court 

has stated that a failure to raise an ineffective assistance of PCRA counsel 

claim before the PCRA court will result in waiver. Commonwealth v. Pitts, 

981 A.2d 875, 880 n.4 (Pa. 2009). The court further stated that a petitioner 

may raise such an issue in either his response to counsel’s Turner/Finley

 

5 The courts in Pierce and Nickens analyzed sentencing schemes under 

18 Pa.C.S.A. § 1321(a). Section 9721 of the Sentencing Code, which is at 

issue in the instant appeal, is virtually identical to Section 1321, except that 

it adds two alternative forms of punishment.
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no-merit letter, or in his response to the PCRA court’s Rule 907 notice of 

intent to dismiss the PCRA petition.

Here, appellant raises the issue of Attorney Blair’s alleged ineffective 

assistance for the first time on appeal. Appellant failed to file any response 

to Attorney Blair’s Turner/Finley no-merit letter and the PCRA court’s 

Rule 907 notice of intent to dismiss his PCRA petition. We, therefore, find 

appellant’s fifth issue waived for the purpose of appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2016