J-S31001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NICOLE MARIE CLELLAND                    :
                                          :
                    Appellant             :   No. 493 WDA 2018

                  Appeal from the PCRA Order April 4, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0000989-2015,
                          CP-02-CR-0016877-2014


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 02, 2019

      Appellant, Nicole Marie Clelland, appeals from the order entered on April

4, 2018 in the Criminal Division of the Court of Common Pleas of Allegheny

County that denied her petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the facts and procedural history in this case

as follows:

      [Appellant] pleaded guilty to theft, accidents involving injury (not
      properly licensed), simple assault, four counts of recklessly
      endangering another person, and criminal mischief at [docket
      number 16877-2014. In that case, Appellant] stole a car from
      UPMC-Mercy Hospital parking lot and proceeded to drive it into a
      valet parking stand and the hospital entrance door, striking
      several individuals. [At docket number 989-2015, Appellant]
      pleaded guilty to two counts of aggravated assault by prisoner
      [after she threw] cups of urine [onto two employees at Allegheny
      County Jail]. She pled guilty to the charges at both cases on May
      25, 2016 and was sentenced on July 21, 2016 to an aggregate
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       term of 9-18 years’ incarceration, three years’ consecutive
       probation, and ordered to have both a drug and alcohol
       evaluation, as well as a mental health evaluation. [Appellant]
       verbally and physically assaulted her attorney [] before her
       sentencing hearing concluded and she was physically removed
       from the courtroom by Sheriff’s deputies. The next day, [the trial
       judge] proceeded to the Allegheny County Jail along with an
       assistant district attorney, assistant public defender and court
       reporter and advised [Appellant] of her post-sentence rights. On
       December 29, 2016, the [trial court] granted PCRA relief and
       reinstated [Appellant’s] post-sentence rights.      Post-sentence
       [motions] were denied on January 17, 2017 and a notice of appeal
       was filed on January 19, 2017.         [Appellant’s] judgment of
       sentence was affirmed and a petition for allowance of appeal was
       denied on January 30, 2018.

       [Appellant] filed a PCRA petition and [the PCRA court] scheduled
       a hearing for April 3, 2018. [The court denied Appellant’s petition
       on April 4, 2018 and a timely notice of appeal followed.1 The PCRA
       court issued an opinion on April 4, 2019, which addressed the
       claims raised in Appellant’s Rule 1925(b) concise statement of
       matters complained of on appeal].

PCRA Court Opinion, 4/11/19, at 2-3 (cleaned up).

       On appeal, Appellant claims that the ineffectiveness of plea counsel

caused her to enter invalid guilty pleas at both docket numbers and the PCRA

court erred in denying her request to withdraw her pleas and proceed to trial.

Specifically, Appellant maintains that her pleas were involuntary, unknowing,

and unintelligent since counsel did not explain the concept of an “open plea”



____________________________________________


1 Although Appellant filed a single notice of appeal from an order disposing of
issues at two trial court docket numbers, we need not quash since the appeal
was filed before the effective date of Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018) (rule requiring quashal of single appeals taken from orders
disposing of issues at multiple trial court dockets becomes effective only after
June 1, 2018).

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to her and because she was heavily medicated. Appellant further claims that

counsel assured her that she would receive a county sentence which she could

serve at Wetzel House, a local treatment center. Lastly, Appellant asserts that

counsel convinced her to plead guilty because she had no viable defenses to

the charges.


      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quotations marks and quotation omitted). This Court is limited to

determining whether the evidence of record supports the factual findings of

the PCRA court and whether its ruling is free of legal error. Commonwealth

v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). “Generally, we are bound

by a PCRA court's credibility determinations [to the extent they are supported

by the record]. However, with regard to a court's legal conclusions, we apply

a de novo standard.” Commonwealth v. Johnson, 139 A.3d 1257, 1272

(Pa. 2016) (quotation marks and quotations omitted).

      We review claims of ineffective assistance of counsel under the following

guidelines:

      It is well-established that counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such deficiency
      prejudiced [her]. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner

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      suffered prejudice as a result of counsel's deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–920 (Pa. Super. 2016)

(quotation marks, quotations, and citations omitted).


      Additionally:

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the ineffectiveness
      caused the defendant to enter an involuntary or unknowing plea.
      Where the defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel's advice
      was within the range of competence demanded of attorneys in
      criminal cases.

      Thus, to establish prejudice, the defendant must show that there
      is a reasonable probability that, but for counsel's errors, [s]he
      would not have pleaded guilty and would have insisted on going
      to trial. The reasonable probability test is not a stringent one; it
      merely refers to a probability sufficient to undermine confidence
      in the outcome.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

      Appellant is not entitled to relief.      The PCRA court examined the

testimony adduced at Appellant’s April 3, 2018 PCRA hearing, together with

her responses to a written plea colloquy and her testimony at the plea hearing

conducted on May 25, 2016. Based upon its review, the PCRA court credited

a version of events that squarely contradict Appellant’s factual allegations on

appeal and demonstrate that Appellant entered knowing, voluntary, and

intelligent pleas. See PCRA Court Opinion, 4/11/19, at 4-6. Since the PCRA



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court’s factual findings are supported by the record, we are bound by them.

Accordingly, we concur in the PCRA court’s conclusion that the assertions

offered in support of Appellant’s PCRA petition are both unfounded and without

merit. As such, the order denying Appellant’s PCRA petition is affirmed.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2019




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