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Commonwealth v. Murray11/13/2003
1 This is an appeal from the denial of a first request for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§9541-9546. We affirm.
2 On December 22, 2000, appellant-Murray entered a counseled plea of guilty to two counts of driving under the influence and to one count of recklessly endangering another person (REAP). He was sentenced to an aggregate term of state incarceration of no less than fifteen months and no greater than six years. Through counsel, Murray perfected a direct appeal to this court, which affirmed the judgment of sentence on October 18, 2001. Murray filed a pro se petition under the PCRA on September 6, 2002. Counsel was appointed and an evidentiary hearing was held on December 23, 2002, at which Murray and his former counsel presented testimony. The lower court denied relief after the conclusion of the hearing.
3 On appeal, Murray, proceeding pro se, presents twelve separately enumerated issues, of which several pertain to the legality of sentence and to the propriety of the trial court's exercise of its discretion in imposing sentence. The remainder of the issues challenge the sufficiency of the evidence and the effectiveness of guilty plea counsel at both the trial and appellate levels and challenge the effectiveness of PCRA counsel in pursuit of the instant petition.
4 The first two issues are as follows:
1. Whether the courts erred when they sentenced appellant outside the Sentencing Guidelines for the two charges of driving under the influence ?
2. Whether the courts erred in using appellant's 1988 homicide by vehicle conviction to sentence him to the maximum on all charges?
5 On direct appeal to this court, appellant pursued, through counsel, a challenge to the sentence imposed for the three charges. The focus of the appeal was whether the trial court erred in sentencing Murray to a term of imprisonment in the state correctional system as opposed to a county sentence. This court treated the issue presented as an appeal from the discretionary aspects of sentence. The court determined that appellant had not presented a substantial question for review and, therefore, dismissed the appeal.
6 Under the PCRA, issues which have been the subject of previous litigation may not be revisited upon collateral review. 42 Pa.C.S.A. §9543(a)(3). When an issue has been previously litigated, post-conviction relief is not available where a new theory of relief is proffered. Commonwealth v. Morales, 701 A.2d 516, 521 (Pa. 1997). A petitioner cannot obtain post-conviction review of claims previously litigated by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims. Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002) (opinion announcing judgment of the court, quoting Commonwealth v. Bracey, 795 A.2d 935, 939 n.2 (Pa. 2001) and other recent cases).
7 We conclude that the first two issues presented constitute an attempt to relitigate claims which have been previously disposed of on appeal before this court. A challenge to the discretionary aspects of Murray's sentence was presented on direct appeal. That a particular claim of abuse of discretion was made, i.e., that the trial court abused its discretion in sentencing Murray to a state, rather than a local, facility, does not change the fact that the direct appeal sought review of the discretionary aspects of sentence. Instantly, Murray's challenge to his sentence under the Sentencing Guidelines and through the use of his 1988 conviction for homicide by vehicle constitutes a claim of abuse of discretion in the imposition of sentence. As
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