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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

RAYMOND FERGUSON,

                            Appellant                  No. 994 EDA 2015


              Appeal from the PCRA Order Entered March 27, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004659-2013


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 18, 2016

        Appellant, Raymond Ferguson, appeals pro se from the post-conviction

court’s March 27, 2015 order denying his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.             After careful

review, we affirm.

        The facts of Appellant’s case are not necessary to the disposition of his

appeal. The PCRA court summarized the procedural history of his case as

follows:

              On September 26, 2013, Appellant entered a Negotiated
        Guilty Plea to Count 1, Possession with Intent to Deliver, and
        was sentenced to 24 to 48 months[’ incarceration] … with credit
        for time served…. Appellant did not file a direct appeal to the
        Superior Court.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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            On August 11, 2014, Appellant filed a timely pro se PCRA
     petition alleging that his attorney was ineffective for permitting
     him to enter a guilty plea because “… the guilty plea was not
     knowingly, willingly, and voluntarily entered, due to [layered]
     claims of ineffective assistance of counsels and judge’s
     involvement in plea agreement?” [sic] (Averment number 5A of
     Appellant’s pro se “Motion for Post Conviction Collateral Relief”).

           On August 14, 2014, the court appointed Scott Galloway,
     Esquire as PCRA counsel. Subsequently, on February 17, 2015,
     Mr. Galloway, Esquire filed a “No Merit” letter and application to
     withdraw pursuant to … Commonwealth v. Turner, 544 A.2d
     927 (Pa. 1988)[, and Commonwealth v. Finley, 550 A.2d 213
     (Pa. Super. 1988) (en banc)].

     …

           On February 18, 2015, an Order was entered granting Mr.
     Galloway’s application to withdraw and providing [] Appellant
     with Notice of Intent to Dismiss the PCRA Petition without a
     Hearing. On March 3, 2015, [] Appellant filed a pro se response
     to the Notice of Intent to Dismiss PCRA Petition without a
     Hearing. On March 27, 2015, an Order was entered denying
     Appellant’s PCRA Petition. On April 9, 2015, [] Appellant timely
     filed a Notice of Appeal to the Superior Court. On June 16,
     2015, the undersigned issued an opinion pursuant to Pa.R.A.P.
     1925(a).

           On July 31, 2015, the Pennsylvania Superior Court filed an
     Order remanding the case to the undersigned for a period of
     ninety days. The PCRA court was directed to provide documents
     and notes of testimony that the PCRA court deemed necessary to
     Appellant. The PCRA court complied with the Court’s Order in a
     response dated August 5, 2015, which outlined the details of the
     compliance. In addition, [] Appellant was permitted to file with
     the PCRA court a statement of errors complained of on appeal,
     pursuant to Pa.R.A.P. 1925(b), within twenty-one (21) days of
     the date that said documents and notes of testimony were
     received by Appellant. The records were sent certified to []
     Appellant by the PCRA court and the U.S.P.S. green card came
     back as delivered on August 10, 2015 which would have placed a
     deadline on [] Appellant of August 31, 2015[, to file his Rule
     1925(b) statement]. Therefore, [] Appellant filed his Statement
     of Matters Complained of on Appeal untimely on September 8,
     2015.


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PCRA Court Opinion (PCO), 10/9/15, at 2-4 (footnote omitted).1

       Initially, we note that there is no indication on the PCRA court’s docket

that an order was issued directing Appellant to filed a Rule 1925(b)

statement. Consequently, we decline to find his issues waived based on the

purported untimeliness of the pro se Rule 1925(b) statement he filed on

September 8, 2015. We will address the merits of the two issues Appellant

raises herein, which are as follows:

       [I.] Whether Appellant’s guilty plea was voluntary because he
       entered the plea under duress?

       [II.] Whether pre-trial/plea hearing counsel rendered ineffective
       assistance by failing to object to the plea hearing/sentencing
       judge[’s] utilizing the school zone [sentencing] enhancement,
       where as the record of plea colloquy is devoid of any reference
       to the element of school zone enhancement as required under …
       18 Pa.C.S.A. [§] 6317(b), and for failing to request that the
       conflict between [counsel] and Appellant be fully discussed on
       the record, instead of the sidebar?

Appellant’s Brief at 4.

       First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).



____________________________________________


1
   While the PCRA court deemed Appellant’s Rule 1925(b) statement untimely
filed, it nevertheless discussed the issues he raised. See PCO at 4-9.



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Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

       [A] PCRA petitioner will be granted relief only when he proves,
       by a preponderance of the evidence, that his conviction or
       sentence resulted from the “[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.”
       Generally, counsel’s performance is presumed to be
       constitutionally adequate, and counsel will only be deemed
       ineffective upon a sufficient showing by the petitioner. To obtain
       relief, a petitioner must demonstrate that counsel’s performance
       was deficient and that the deficiency prejudiced the petitioner. A
       petitioner establishes prejudice when he demonstrates “that
       there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have
       been different.” … [A] properly pled claim of ineffectiveness
       posits that: (1) the underlying legal issue has arguable merit;
       (2) counsel’s actions lacked an objective reasonable basis; and
       (3) actual prejudice befell the petitioner from counsel’s act or
       omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

       In the argument portion of his brief, Appellant essentially contends

that he was coerced into pleading guilty by his attorney(s) and the trial

court.2 He explains that his attorney at the preliminary hearing “erroneously

told [Appellant] that if he waived his [right to a] preliminary hearing[,] he

____________________________________________


2
  It seems that Appellant had three different attorneys, one who represented
him at the preliminary hearing stage; one who represented him at a short
hearing on September 26, 2013 (discussed in detail, infra), and one who
represented him at the plea/sentencing proceeding later in the day on
September 26, 2013.



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would receive a 1 to 2 year sentence,” which “manipulated [Appellant] into

pleading guilty.” Appellant’s Brief at 9. He further claims that his attorney

at the plea proceeding informed him that the Commonwealth was offering a

negotiated sentence of 2 to 4 years’ incarceration, at which point he told his

counsel that “he was no longer interested in taking a deal, and he felt that

he was being pressured and coerced into pleading guilty….”         Id. at 10.

Appellant avers that his plea counsel stated, “just take the deal or you’re

going to get the max.” Id.     He further contends that the court improperly

participated in the plea bargaining process by telling Appellant that, “he had

no more time left to decide, and that [Appellant] had to just take the deal.”

Id. at 10. According to Appellant, he “felt that he had no choice but to plead

guilty, and did exactly as he was told.” Id.

      We acknowledge that the record does support that prior to the plea

proceeding, Appellant told his attorney and the court that he did not want to

plead guilty.   Specifically, the record indicates that two hearings were

conducted on September 26, 2013, and at the first, brief proceeding, the

following was stated:

      [The Commonwealth]: Your Honor, if we could address the
      Commonwealth vs. Raymond Ferguson, it is #15 on this week’s
      list, Transcript #4659 of ’13. … [Appellant] is present and
      represented by counsel.

      [Plea Counsel]: Good afternoon, Your Honor. Kaitlyn Searls …
      on behalf of [Appellant] who is present and standing to my left.

      [The Commonwealth]: Your Honor, the Commonwealth has
      conveyed an offer in this matter which will remain open for the
      time being. It’s my understanding [Appellant] does not wish to

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      enter a plea at this time. So, I believe the Defense is asking for
      a trial date.

      [Plea Counsel]: That’s correct, Your Honor. And additionally, we
      will be filing a Conflict Motion in this case. [Appellant] believes
      that he waived his Preliminary Hearing and -- can we see you in
      sidebar?

N.T. Hearing, 9/26/13, at 3-4. After a two-minute sidebar, which was not

transcribed, the proceeding ended abruptly, with no further discussion. See

id. at 4.

      Apparently, later that same day, the parties again appeared before the

court for Appellant to enter a guilty plea.      Notably, a different attorney

entered her appearance on behalf of Appellant at this later proceeding. See

N.T. Plea/Sentencing Hearing, 9/26/13, at 3 (Denise McCrae, Esquire,

entering her appearance on Appellant’s behalf). The Commonwealth stated

that the parties had reached a plea agreement, and it explained to the court

the terms of that agreement, including a sentence of 2 to 4 years’

incarceration.   Id. at 4.   The trial court then conducted a standard oral

colloquy of Appellant, at one point asking him if he heard the terms of the

plea deal and agreed to them. Id. at 6. Appellant stated, “Yes.” Id. The

court explained Appellant’s rights to him, the burden of proof the

Commonwealth would face if he proceeded to trial, and the rights that he

was waiving by pleading guilty.          Id. at 6-9.   The court stated that

Appellant’s offense carried a maximum sentence of 10 years’ imprisonment

and a fine of $100,000.      Id. at 8.    Appellant confirmed that his counsel

reviewed the written plea colloquy with him “line-by-line and paragraph-by-


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paragraph[,]” and that he initialed next to each paragraph on that colloquy

and signed it at the end. Id. at 9-10.

      Moreover, near the end of the colloquy, the court asked Appellant

whether his decision to enter the plea was made “freely and voluntarily,” to

which Appellant stated, “Yes.”     Id. at 10.     The court also asked, “Did

anybody threaten you or promise you anything in exchange for the plea?”

and Appellant replied, “No.” Id. at 10-11. Ultimately, the court accepted

Appellant’s plea, finding it to be “knowing, intelligent and voluntary.” Id. at

11. Upon agreement of the parties to immediately proceed to sentencing,

the court asked Appellant if there was “anything [he] want[ed] to say before

[the court] impose[d] sentence?” to which Appellant replied, “[n]ot really”

and then, “no.”    Id. at 12.    The court then sentenced Appellant to the

negotiated term of 2 to 4 years’ incarceration.      Id. at 12-13.    Appellant

stated he understood the sentence and had no questions about it. Id. at 13.

      At no point during the guilty plea colloquy or sentencing did the court

or plea counsel make any comments that could be interpreted as coercive.

Additionally, Appellant never expressed any reservations about pleading

guilty, uncertainty about the negotiated sentence, or concerns regarding the

representation of his attorney or the alleged participation of the court in the

plea negotiation process. This record does not demonstrate that Appellant’s

counsel acted ineffectively, that the court improperly interfered with the plea

negotiation process, or that Appellant’s guilty plea was involuntary,

unknowing, or unintelligent. Accordingly, Appellant’s first issue is meritless.

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       Next, Appellant argues that his counsel acted ineffectively by not

objecting to the court’s imposition of a mandatory minimum sentence under

18 Pa.C.S. § 6317 (Drug-free school zones), where the Commonwealth did

not present any evidence that Appellant’s offense was committed within

1,000 feet of a school.

       The record does not support Appellant’s claim that the court imposed a

mandatory       minimum      sentence        pursuant   to   section   6317.3    The

Commonwealth did not reference a mandatory minimum sentence or section

6317 when it explained the terms of the negotiated plea agreement, and the

court likewise made no mention of this statute or a mandatory term of

incarceration    when     imposing     the     agreed-upon   sentence.     See   N.T.

Plea/Sentencing Hearing at 3-4; 12-13.              Indeed, at no point during the

plea/sentencing proceeding did anyone refer to section 6317, or even

indicate that Appellant sold drugs within a school zone.

       Appellant does correctly note that the “Guideline Sentence Form” has a

checkmark next to the words “School/Drug Distribution” in the box labeled

“Enhancement.” See Guideline Sentence Form (Trial Court Docket Entry 8).

However, there is no other indication on that form that a mandatory
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3
 We acknowledge that recently, in Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015), our Supreme Court deemed 18 Pa.C.S. § 6317
unconstitutional in its entirety, as that statute violates the rule set forth in
Alleyne v. U.S., 133 S.Ct. 2151 (2013) (holding that a jury must find,
beyond a reasonable doubt, any facts that trigger the application of a
mandatory minimum sentence).



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sentence was applied. Most notably, nothing is written in the boxes labeled

“Mandatory Minimum” or “Mandatory.” Presumably, if Appellant’s sentence

was imposed under 18 Pa.C.S. § 6317, as he claims, that statute would be

set forth in one, or both, of those boxes.

        Additionally,    the   written   plea   colloquy   completed   by    Appellant

demonstrates      that    no    mandatory       minimum    sentence    was    applied.

Specifically, that form left blank spaces where it would have set forth any

applicable mandatory minimum sentence, and stated only that “the

maximum penalty for this crime is 10 [years] in jail and a $100,000 fine.”

See Guilty Plea Colloquy, 9/26/13, at 3 (unpaginated).                 Based on this

record, Appellant has failed to prove that the court imposed a mandatory

minimum sentence under 18 Pa.C.S. § 6317. Consequently, counsel cannot

be deemed ineffective for not objecting to the Commonwealth’s failure to

present evidence that Appellant was arrested within 1,000 feet of a school

zone.

        Finally, within his second issue, Appellant also alleges that his attorney

at the initial proceeding on September 26, 2013, ineffectively “failed to

request that the conflict between her and Appellant be discussed in full on

[the] record, where an actual conflict existed.” Appellant’s Brief at 14. He

baldly asserts that “the conflict caused Appellant to plead guilty.” Id. at 12.

However, Appellant fails to argue, let alone prove, that he was prejudiced by

counsel’s conduct.        Namely, it is apparent that Appellant received new

counsel prior to the plea proceeding and sentencing. He offers no discussion

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of what conflict existed with his initial attorney, or explain how that impacted

the voluntariness of his decision to plead guilty.     He also offers no legal

authority, or even discussion, to support his bald allegation that counsel

erred by discussing the conflict with the court at a sidebar, rather than on

the record. In light of the fact that Appellant received new counsel prior to

entering his plea, and the record demonstrates that his plea was knowing,

intelligent, and voluntary, Appellant has not proven that counsel acted

ineffectively in this regard.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




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