J-S07038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROOSEVELT WARDEN

                            Appellant              No. 1019 MDA 2014


                    Appeal from the PCRA Order June 2, 2014
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001670-2012


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED APRIL 10, 2015

        Roosevelt Warden appeals from the order entered June 2, 2014, in the

Schuylkill County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Warden seeks relief from the judgment of sentence imposed September 25,

2013, following his guilty plea to one count of robbery. 1 On appeal, Warden

seeks to withdraw his negotiated guilty plea and proceed to trial.   For the

reasons set forth below, we affirm.




____________________________________________


1
    18 Pa.C.S. § 3701(a)(1).
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       The facts underlying this appeal are as follows.2 On October 12, 2012,

at approximately 11:00 p.m., Warden approached the victim, who was

talking on a cell phone outside of a bar, pressed a knife to the back of the

his neck, and robbed him of his wallet and cell phone. An employee and a

patron of the bar witnessed the robbery. The employee recognized Warden

because he had been previously banned from the bar.                   Warden fled the

scene, and was later apprehended by police.                The bar employee identified

Warden from a photo lineup.

       Warden was subsequently charged with robbery (three counts),

unlawful restraint, recklessly endangering another person, simple assault,

theft, and receiving stolen property.3             On January 11, 2013, he filed a

pretrial motion seeking to suppress his photo lineup identification, as well as

a statement he made to police. Following a hearing, the trial court denied

the motion on May 20, 2013. On August 6, 2013, Warden signed a written

negotiated plea agreement in which he agreed to enter a guilty plea to one

count of robbery in exchange for a sentence of three to six years’

imprisonment,      followed    by    four      years’   probation.   Additionally,   the

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2
  These facts were gleaned from the probable cause affidavit attached to
Warden’s criminal complaint. See Criminal Complaint, 10/15/2012, Affidavit
of Probable Cause, at 1-2.
3
  18 Pa.C.S. §§ 3701(a)(1), 2902(a)(1), 2705, 2701(a)(3), 3921(a), and
3925(a), respectively.




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Commonwealth agreed to nolle pros the remaining charges. At a hearing on

September 25, 2013, the trial court accepted Warden’s guilty plea and

imposed the negotiated sentence. No direct appeal was filed.

      On April 4, 2014, Warden filed a pro se PCRA petition, arguing, inter

alia, he was coerced into entering a guilty plea. Jeffrey M. Markosky, Esq.

was appointed on April 16, 2014, to assist Warden in the litigation of his

petition.   However, less than one month later, on May 12, 2014, the trial

court provided Warden with notice, pursuant to Pa.R.Crim.P. 907, of its

intent to dismiss the petition without conducting an evidentiary hearing.

Markosky filed an objection to the court’s Rule 907 notice, asserting (1)

Warden was “coerced by his attorney” to enter a guilty plea when he

intended to assert his innocence, and (2) “the Tamaqua police officers were

applying pressure to Mr. Warden’s girlfriend and threatening to remove her

children from her custody” if he declined to accept the plea. Warden’s

Objection to Dismissal of Post-Conviction Relief Act Petition, 5/30/2014, at

¶¶ 1-2. Markosky also requested the court schedule an evidentiary hearing.

Nevertheless, on June 2, 2014, the PCRA court denied the petition without a

hearing, finding that Warden “ha[d] not listed any witnesses nor testimony

he wishe[d] to present which could in any way contradict the assertions he

made under oath during his guilty plea hearing on September 25, 2013.”

Order, 6/2/2014.

      Although still represented by PCRA counsel, Warden filed a timely, pro

se notice of appeal, followed by a pro se concise statement of errors

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complained of on appeal pursuant to Pa.R.A.P. 1925(b),4 in which he

challenged, inter alia, the trial court’s denial of his PCRA petition without first

providing appointed counsel the opportunity to supplement the petition.

See Statement of Reasons for Appeal, 7/28/2014.           On July 30, 2014, the

PCRA court issued an order stating that it would no longer consider any pro

se filings because Warden was represented by counsel.5                See Order,

7/30/2014.

        Thereafter, on August 22, 2014, Warden filed another pro se motion in

the PCRA court in which he claimed (1) the PCRA court failed to file an

opinion, and (2) former counsel “abdicat[ed] any and all of his lawfully

mandated responsibilities[.]”        Motion for the Immediate Correction of an

Inavertence, (sic) that Requires Provision of a Judicial Opinion[] Where

Former Counsel Caused Such Inadvertence of Legal Fact, 8/22/2014.               On

September 2, 2014, the PCRA court issued an order noting that it was

without jurisdiction to act on the motion since Warden had filed an appeal to

this Court, but that, in any event, it had filed a Pa.R.A.P. 1925(a) opinion on

June 2, 2014. See Order, 9/2/2014. Warden subsequently filed a “Motion




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4
  We note that the PCRA court did not order Warden to file the concise
statement.
5
    The order was sent to both Warden and Markosky.




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for Withdrawal of Appointed Counsel,” which the PCRA court promptly

denied.

      On October 14, 2014, after appointed counsel failed to file an appellate

brief, this Court remanded the appeal to the PCRA court “for a determination

as to whether counsel ha[d] abandoned [Warden] and to take further action

as required to protect [Warden’s] right to appeal.”            Order, 10/14/2014.

Upon remand, the PCRA court conducted a hearing on October 29, 2014.

That same day, it issued an order finding (1) Markosky had prepared and

mailed briefs to all parties, but that the briefs never arrived, and (2)

Markosky had not abandoned Warden. See Order, 10/29/2014, at 1. The

PCRA court also noted Warden “agreed to [the] same but had believed that

Attorney Markosky had abandoned him when he did not receive a copy of

the Brief.” Id. at 2. Further, the PCRA court directed Markosky to re-mail

the briefs to the appropriate parties before October 31, 2014.             Markosky

complied with the PCRA court’s directive, and the appeal is now before us for

disposition.

      On appeal, Warden challenges the ineffectiveness of plea counsel in

coercing him to enter a guilty plea, and further claims he was “coerced into

accepting      his   negotiated   guilty   plea”   because   the   arresting   officers

threatened to remove his girlfriend’s children from her care if he did not

enter a plea. Warden’s Brief at 7.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

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evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

       As a preliminary consideration, we note that in order to obtain relief

under the PCRA, a petitioner must plead and prove that his claim has not

been previously litigated or waived. See 42 Pa.C.S. § 9543(a)(3). Warden’s

contention that he was coerced into entering a guilty plea because of threats

made by police officers could have been raised on direct appeal. Therefore,

Warden’s decision to forego a direct appeal waives this claim for our review.6

See 42 Pa.C.S. § 9544(c) (“[A]n 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 postconviction proceeding.”).

       Warden also contends, however, that plea counsel coerced him into

entering a guilty plea, which is cognizable under the PCRA, and has not been

previously litigated or waived. See 42 Pa.C.S. § 9543(a)(2)(ii).

       Our review of an ineffectiveness claim is well-settled:

       We begin our analysis of ineffectiveness claims with the
       presumption that counsel is effective.     To prevail on his
       ineffectiveness claims, Appellant must plead and prove, by a
____________________________________________


6
  We note that Warden does not claim that he requested plea counsel to file
a direct appeal, and counsel ignored his request.



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       preponderance of the evidence, three elements: (1) the
       underlying legal claim has arguable merit; (2) counsel had no
       reasonable basis for his action or inaction; and (3) Appellant
       suffered prejudice because of counsel’s action or inaction. With
       regard to the second, i.e., the “reasonable basis” prong, we will
       conclude that counsel’s chosen strategy lacked a reasonable
       basis only if Appellant proves that “an alternative not chosen
       offered a potential for success substantially greater than the
       course actually pursued.”       To establish the third, i.e., the
       prejudice prong, Appellant must show that there is a reasonable
       probability that the outcome of the proceedings would have been
       different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). A petitioner must demonstrate each prong of the

ineffectiveness test in order to obtain relief.          Commonwealth v. Steele,

961 A.2d 786, 800 (Pa. 2008).

       Here, Warden’s argument fails to address any of the ineffectiveness

prongs. See Warden’s Brief at 7-8. Moreover, he neglects to explain how

plea counsel “coerced” him into entering a guilty plea. “Claims of ineffective

assistance of counsel are not self-proving[,]”7 and our Supreme Court has

repeatedly     refused     to   consider       bald   allegations   of   ineffectiveness.

Commonwealth v. Thomas, 744 A.2d 713, 716 (Pa. 2000) (declining to

find counsel ineffective “where appellant fail[ed] to allege with specificity

sufficient facts in support of his claim.”). Accordingly, Warden’s challenge to

plea counsel’s ineffectiveness is also waived.


____________________________________________


7
 Commonwealth v. Spotz, 896 A.2d 1191, 1250 (Pa. 2006) (citation
omitted).



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       Nevertheless, even if we were to consider this claim, we note that “[a]

defendant is bound by the statements made during the plea colloquy, and …

may not later offer reasons for withdrawing the plea that contradict

statements made when he pled.”                 Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citation omitted), appeal denied, 63 A.3d

773 (Pa. 2013). Although we recognize the oral plea colloquy in this case

was brief,8 prior to the guilty plea hearing, Warden completed an extensive

written plea agreement.        See Memorandum of Plea Agreement, 8/6/2013,

and Written Guilty Plea, 8/6/2013.              In the written agreement, Warden

acknowledged that it was his decision to plead guilty and he did so because

“I’m guilty of said crimes & want to move on with my life[.]” Written Guilty

Plea, 8/6/2013, at 4. Furthermore, he responded that he was satisfied with

“the representation and advice” of his attorney, that his plea was “given

freely and voluntarily without any force, threats, pressure or intimidation[,]”

and that no one had said anything “that would induce [him] or put pressure

on [him] to plead guilty[.]” Id. During the subsequent oral colloquy, the

trial court asked Warden “whether all of the answers to the questions that

[he had] provided in the [written] colloquy [were] true and accurate and

correct in every respect?” to which Warden answered, “Yes.”                N.T.,


____________________________________________


8
 The trial court consolidated the plea hearings for a number of defendants
who had negotiated plea agreements with the Commonwealth.             See
generally N.T., 9/25/2013.



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9/25/2013, at 6. Moreover, he affirmatively stated that he wanted to “plead

guilty.”   Id. at 7.    Therefore, even if the ineffectiveness claim was not

waived, Warden would be entitled to no relief.

      Order affirmed.



      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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