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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

WIN MIN HTUT

                            Appellant                   No. 326 EDA 2016


                  Appeal from the PCRA Order January 5, 2016
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0000308-2014


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED FEBRUARY 13, 2017

       Win Min Htut appeals from the January 5, 2016 order of the Lehigh

County Court of Common Pleas denying his petition for relief filed under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Htut’s counsel

has also filed with this Court a “no-merit” brief1 and a motion to withdraw

from representation. We affirm the PCRA court’s order and grant counsel’s

motion to withdraw.

       On September 2, 2014, Htut entered a negotiated guilty plea to one

count of second-degree murder2 and was sentenced to life in prison. As part
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
     See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
       2
           18 Pa.C.S. § 2502(b).
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of the plea agreement, the Commonwealth agreed to not seek the death

penalty and to permit a guilty plea to second-degree murder in exchange for

Htut’s waiver of his appeal and post-conviction rights.3      Htut’s waiver was

memorialized in a “Written Waiver of Appeal Rights Colloquy,” which both

Htut and his plea counsel signed on August 26, 2014.          On September 2,

2014, the trial court conducted an on-the-record, oral colloquy to confirm

that Htut’s decisions to plead guilty and to waive his appeal and post-

conviction rights were knowing and voluntary. The trial court incorporated

both the written guilty plea colloquy and the written waiver colloquy into the

record.

       On August 3, 2015, Htut filed a timely pro se PCRA petition. The PCRA

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

15, 2015. Thereafter, the Commonwealth sought to enforce Htut’s waiver of

appeal and post-conviction rights. On January 5, 2016, the PCRA court held

a hearing limited to the enforcement of Htut’s waiver.        Both Htut and his

plea counsel testified regarding the circumstances surrounding Htut’s signing

of the waiver colloquy.        At the conclusion of the hearing, the trial court



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       3
         The Commonwealth had initially filed a notice of aggravating
circumstances, intending to seek the death penalty. Before the entry of
Htut’s plea, and by agreement of the parties, the trial court amended the
information to change the charge from criminal homicide, which includes
first- and second-degree murder, to second-degree murder. See N.T.,
9/2/14, at 3-4.



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concluded that Htut’s waiver was both knowing and voluntary and, thus,

dismissed Htut’s PCRA petition.

      Htut timely appealed to this Court. On February 10, 2016, Htut filed a

Pennsylvania Rule of Appellate Procedure 1925(b) statement, asserting that

his plea counsel was ineffective for failing to explain that Htut was giving up

his right to file a PCRA petition when he signed the waiver colloquy.       On

March 28, 2016, Htut’s counsel filed a no-merit brief and a motion to

withdraw from representation.      On June 2, 2016, after requesting and

receiving an extension of time, Htut filed a pro se response to counsel’s no-

merit brief.

      Before we may address the merits of Htut’s appeal, we must

determine whether PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley. Counsel must:

         file a “no-merit” letter detailing the nature and extent of
         his review and list[ing] each issue the petitioner wishes to
         have examined, explaining why those issues are meritless.
         The PCRA court, or an appellate court if the no-merit letter
         is filed before it, then must conduct its own independent
         evaluation of the record and agree with counsel that the
         petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1185 (Pa.Super. 2012) (internal

citation omitted). Counsel also must serve copies of the petition to withdraw

and “no-merit” letter on the petitioner and advise the petitioner that he or

she has the right to proceed pro se or with privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).



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       In his motion to withdraw and brief, counsel states that he reviewed

the record and applicable law, listed the issue Htut wished to raise, and

explained why the issue is meritless. He also mailed a copy of the petition

and no-merit brief to Htut and informed Htut of his right to proceed pro se or

with private counsel.        We conclude that counsel has complied with the

dictates of Turner/Finley.         Thus, we will independently review the record

to determine whether Htut’s appeal is meritless.

       In his no-merit brief, Htut’s counsel raises the following issue:

           WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
           EXPLAIN TO [HTUT] THAT HE WAS GIVING UP HIS RIGHTS
           TO FILE A PCRA PETITION AGAINST HIS TRIAL ATTORNEY.
           THIS RESULTED IN AN UNKNOWING AND INVOLUNTARY
           WAIVER OF RIGHT TO APPEAL.

No-Merit Br. at 4.4

       Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.
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       4
        In his pro se brief, Htut likewise challenges the validity of his waiver
of appeal rights but also raises numerous additional claims regarding, inter
alia, the voluntariness of his guilty plea and the ineffectiveness of both plea
counsel and PCRA counsel. See Htut’s Br. at 5-6. However, in light of our
conclusion that Htut validly waived his appeal and post-conviction rights,
see supra at 7-8, we will not review these additional claims.



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       One week before entering his guilty plea in open court, Htut signed a

written waiver colloquy in which he agreed to waive all appeal and post-

conviction rights.5 During the subsequent oral colloquy, Htut stated that he

had reviewed the waiver form with counsel and understood it. N.T., 9/2/14,

at 28-29, 47-48. Htut also initialed each page of the waiver form and signed

and dated the last page. See Waiver Colloquy, at 1-5 (unnumbered). Htut

is bound by the statements he made in his oral and written colloquies. See

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011);

Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.Super. 1996).

       At the PCRA hearing, Htut testified that his plea counsel presented the

waiver form to him “at the very last minute”; counsel coerced him into

signing it; and he did not understand the rights he was relinquishing

because English is not his native language.6 N.T., 1/5/16, at 16-18, 23-24.

These allegations, however, were directly refuted by the waiver colloquy

itself, plea counsel’s testimony, and Htut’s own testimony.    Htut admitted

that he signed the waiver colloquy on August 26, 2014, one week before he

entered his guilty plea. Id. at 19-20; see Waiver Colloquy at 5-6.
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       5
        See Commonwealth v. Saranchak, 810 A.2d 1197, 1199 (Pa.
2002) (“Most jurisdictions permit a capital defendant to waive direct
appellate review and/or post-conviction proceedings, and Pennsylvania is no
exception.”).
       6
       Htut was born in Myanmar, and his native language is Burmese. He
was 38 years old at the time of plea proceeding. See Opinion, 2/18/16, at 2
(“1925(a) Op.”).



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     With regard to Htut’s understanding of the waiver colloquy, the PCRA

court found:

        [Htut], according to counsel, is well-versed in the English
        language, and throughout his representation of [Htut],
        their dialogue was in English.

        Not only did counsel review the terms of the plea
        agreement      with    [Htut],    which      included    the
        Commonwealth’s agreement not to seek the death penalty,
        but also the waiver of appeal rights. Counsel testified that
        he “read every word, every line, and stopped after each
        line to make sure [Htut] understood what I was saying to
        him . . . and after each number, and I went through
        everything with him and he understood everything.”
        Counsel, contrary to [Htut’s] assertions regarding the
        waiver of appeal rights, indicated that [Htut] “understood
        the content of it. He was willing to sign it. He did sign it.
        And I did not in any way yell at him, threaten him, or
        anything of that nature. It was completely a volitional act
        on his part to sign it.” [Htut] never refused to sign the
        waiver of appeal rights.

1925(a) Op. at 6-7 (footnotes omitted).    Further, at the plea proceeding,

counsel stated:   “I have never gotten the impression that [Htut] has any

difficulty understanding English or the legal concepts that I was presenting

to him, and I explained every right that he has as contained in the various

colloquies[,] and he acknowledged that he understood those rights.” N.T.,

9/2/14, at 7-8.

     The PCRA court specifically found that the testimony of plea “counsel

was credible and consistent, and [Htut] provided an untrustworthy version of

the proceedings.”   1925(a) Op. at 8.   We are bound by the PCRA court’s

credibility determinations as long as they are supported by the record.



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Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013). We conclude

that the oral and written guilty plea colloquies and the written waiver

colloquy support the PCRA court’s credibility findings.

      We also reject Htut’s claim that, at the time he signed the waiver

colloquy, he was unaware that he was forfeiting his right to file a PCRA

petition. As the PCRA court aptly explained:

         PCRA counsel, faced with [Htut’s] credibility dilemma,
         suggests that although [Htut] signed the waiver colloquy,
         trial counsel was somehow ineffective because he did not
         use the magic words PCRA, or did not explain to [Htut] his
         right to file a PCRA. This is, at best, sophistry because
         trial counsel testified that he did explain the “Written
         Waiver Of Appeal Rights Colloquy” in detail. The waiver
         document, in clear terms, spells out [Htut’s] reciprocal
         agreement “not to seek or file or have filed on my behalf,
         any direct [or] collateral appeals of my conviction,
         sentence, or this agreement to the appellate courts of
         Pennsylvania . . .” upon the Commonwealth’s agreement
         not to seek the death penalty. The waiver document then
         elaborates on collateral appeals to include “request for
         relief under the state Post Conviction Relief Act . . . .” Not
         only does the waiver document explain collateral appeals,
         but then tracks the language of the PCRA statute.

1925(a) Op. at 9 (footnotes omitted).

      We agree with the PCRA court that plea counsel need not have used

the acronym “PCRA” while explaining the waiver form to Htut. The waiver

form clearly stated that Htut was “giving up the right to make allegations,

including but not limited to, asserting that [his] conviction or sentence

resulted from” a constitutional violation, ineffective assistance of counsel, or

an unlawfully induced guilty plea.      Waiver Colloquy, ¶ 6(e)(1)-(3).     The



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waiver form also stated that “no other court will review [Htut’s] case after

today.” Id., ¶ 6(d) (emphasis added). Plea counsel credibly testified that

he read and explained the entire waiver form to Htut and that Htut

understood it.

      The record supports the PCRA court’s determination that Htut’s waiver

of his appeal and post-conviction rights, including his right to file the instant

PCRA petition, was knowing and voluntary.           Accordingly, because Htut

validly waived his right to seek post-conviction relief, the PCRA court

properly dismissed his petition.

      Order affirmed. Motion to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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