J-S51039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES R. HORROCKS,

                            Appellant                No. 3523 EDA 2015


                 Appeal from the PCRA Order October 30, 2015
                 in the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0002581-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 09, 2016

        Appellant, Charles R. Horrocks, appeals from the denial of his first

counseled petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        We take the factual and procedural history in this matter from the

PCRA court opinion and our review of the certified record. On October 18,

2012, Appellant pleaded guilty to homicide by vehicle while driving under the

influence (DUI), homicide by vehicle, accidents involving death or personal

injury, accidents involving death while not properly licensed, DUI, and

related summary offenses.1
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  See 75 Pa.C.S.A. §§ 3735(a), 3732(a), 3742(a), 3742.1(a), and
3802(a)(1) respectively.
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      The charges stemmed from an incident on February 19, 2012. After

drinking at a bar with friends, Appellant left that bar and drove his vehicle

sixty-miles per hour in a thirty-five-mile per hour zone. He swerved to avoid

a slower car in front of him, and struck a pedestrian, Eric Beck, killing him.

Appellant did not stop his car, or even slow down. Instead he fled the scene

of the accident to meet his friends at a second bar.      Upon arriving at the

second bar, he continued drinking and partying with his friends.

      At the time of the accident, Appellant was on probation for a robbery

and conspiracy to commit robbery conviction.       His license was suspended

and he did not have insurance for his vehicle nor was the vehicle registered

in his name.      The next morning, after learning that Mr. Beck had died,

Appellant hid his vehicle in a storage facility.

      After his arrest, Appellant’s parents retained Louis Busico, Esq., as

counsel to represent Appellant. (See N.T. PCRA Hearing, 9/04/15, at 16).

Mr. Busico entered his appearance with the understanding that Appellant

would plead guilty in this case.    The PCRA court found that Appellant was

aware of the terms of Mr. Busico’s appearance. (See PCRA Court Opinion,

2/24/16, at 2).

      At his guilty plea hearing on October 18, 2012, the trial court

administered a guilty plea colloquy, and notified Appellant of the charges

against him and the maximum penalties that could be imposed. (See N.T.

Guilty Plea Hearing, 10/18/12, at 13-18). Appellant acknowledged that he

understood the possible penalties.      He testified that he was satisfied with

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counsel’s representation, he was not forced to plead guilty, he was entering

the plea voluntarily, and he had discussed possible defenses with counsel.

(See id. at 18-19). He acknowledged that there was a mandatory minimum

sentence of not less than three nor more than six years’ imprisonment for

homicide by vehicle, DUI, but that he might still face additional time. (See

id. at 19-20). Finally, before Appellant pleaded guilty, the court explained

to him that he faced a maximum term of imprisonment of thirty-one years.

(See id. at 22).

      After pleading guilty, Appellant requested a deferral of sentencing.

During   the   deferral,     Mr.   Busico   “arrange[d]   for   Appellant   to   be

psychologically evaluated and for Appellant’s friends and family to submit

character letters in support of [him].” (PCRA Ct. Op., at 3) (record citation

omitted). Counsel also “engaged in negotiations with Appellant’s probation

officer to secure a concurrent sentence on his probation violation. However,

. . . shortly prior to the sentencing, [] negotiations ‘fell apart[.]’”      (Id.)

(record citation omitted).

      On December 13, 2012, the court conducted a sentencing hearing,

after which it imposed an aggregate sentence of not less than six and one-

half nor more than thirteen years of incarceration, followed by a five-year

term of probation. (See N.T. Sentencing, 12/13/12, at 59-61). Appellant

did not file a post-sentence motion or direct appeal.

      On July 29, 2013, Appellant filed a pro se PCRA petition.         The court

appointed counsel who filed an amended petition on January 16, 2015.

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Appellant retained private counsel who entered his appearance and filed an

amended PCRA petition on September 2, 2015.2

       On September 4, 2015, the PCRA court conducted an evidentiary

hearing on Appellant’s PCRA petition. At that hearing the PCRA court heard

from Mr. Busico, who testified that:

             Prior to the entry of Appellant’s guilty plea, Mr. Busico
       reviewed the elements of the offenses with Appellant. Mr.
       Busico confirmed that he never promised Appellant that he
       would receive a sentence of three (3) to six (6) years if he would
       plead guilty. He further testified that he did not make any
       promises to Appellant concerning how his sentence would be
       served, only advising Appellant that it would be a state sentence
       and informing him of various programs of which he could avail
       himself while in custody to potentially aid in the timing of his
       eventual release.     Furthermore, Mr. Busico never promised
       Appellant that he would be able to serve his time at any
       particular state facility or be able to serve a portion of his
       sentence in a halfway house.         After reviewing all of this
       information with Appellant, Appellant indicated to Mr. Busico that
       he would plead guilty to the offenses.

(PCRA Ct. Op., at 2-4) (record citations omitted).

       Mr. Busico testified that neither Appellant nor his family requested that

he file a direct appeal.        (See N.T. PCRA Hearing, 9/04/15, at 68).          He

testified that the only appeal that was ever mentioned in discussions with

Appellant and his parents was “an appeal of a notice of suspension for

driver’s license.”    (See id. at 72).         Finally, Mr. Busico testified that had


____________________________________________


2
  Prior to retaining PCRA counsel, Appellant filed a pro se amended PCRA
petition on February 6, 2015.



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Appellant directed him to file a motion for reconsideration of sentence, he

would have complied with Appellant’s request and filed it. (See id. at 73).

        Appellant also testified at the PCRA evidentiary hearing.   During his

testimony he alleged that Mr. Busico informed him that if he pleaded guilty

he would receive the mandatory minimum sentence, and that when

Appellant told Mr. Busico that he was not guilty of some offenses, Mr. Busico

still suggested he plead guilty and be sentenced to the mandatory minimum.

(See N.T. PCRA Hearing, 1/23/15, at 14-15; N.T. PCRA Hearing, 9/04/15, at

31). Appellant claims that, immediately after receiving his sentence, he told

Mr. Busico that he wanted to file a reconsideration as well as a direct appeal.

(See N.T. PCRA Hearing, 9/04/15, at 22).

        Finally, Charles Horrocks, Sr., Appellant’s father, testified at the

evidentiary hearing claiming that he, together with other family members

asked Mr. Busico about the possibility of filing an appeal and a motion for

reconsideration following Appellant’s sentencing.     (See id. at 76).      He

alleged that he spoke with Mr. Busico on the phone and reiterated

Appellant’s request to file a motion for reconsideration and an appeal. (See

id.).

        “After taking the matter under advisement, th[e PCRA c]ourt found

Mr. Busico to be a credible witness and issued an [o]rder on October 30,




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2015[,] denying Appellant’s [p]etition[.]”       (PCRA Ct. Op., at 6) (emphasis

added). This timely appeal followed.3

       Appellant raises two issues on appeal:

       1. Whether Appellant’s trial counsel was per se ineffective for
       failure to file a motion for reconsideration and direct appeal, as
       requested by Appellant?

       2. Whether Appellant’s guilty plea was rendered involuntary and
       unknowing through the ineffective assistance of counsel, where
       Appellant’s counsel induced Appellant into pleading guilty with
       the false promises that Appellant would receive the mandatory
       minimum sentence of three (3) to six (6) years for DUI homicide
       conviction and that this sentence would be imposed concurrently
       with the sentence for the direct violation of his probation?

(Appellant’s Brief, at 4).

       Our standard of review concerning denial of a PCRA petition is well-

settled.

              This Court examines PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record[.] Additionally, [w]e grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. In this respect, we
       will not disturb a PCRA court’s ruling if it is supported by
       evidence of record and is free of legal error. However, we afford
       no deference to its legal conclusions. [W]here the petitioner
       raises questions of law, our standard of review is de novo and
       our scope of review is plenary. . . .


____________________________________________


3
 Appellant filed his notice of appeal on November 18, 2015. Pursuant to the
court’s order, Appellant filed a timely statement of errors complained of on
appeal on January 29, 2016. See Pa.R.A.P. 1925(b). The court entered an
opinion on February 24, 2016. See Pa.R.A.P. 1925(a).



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Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

      Furthermore, “[t]he findings of a post-conviction court, which hears

evidence and passes on the credibility of witnesses, should be given great

deference.    We will not disturb the findings of the PCRA court if they are

supported by the record, even where the record could support a contrary

holding.”    Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006)

(citation   omitted).   Additionally,    “where   a   PCRA   court’s   credibility

determinations are supported by the record, they are binding on the

reviewing court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999)

(citation omitted).

      To obtain relief under the PCRA based upon a claim that counsel was

ineffective, a petitioner must establish by a preponderance of evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.”        42

Pa.C.S.A. § 9543(a)(2)(ii).

      In Pennsylvania, counsel is presumed effective, and a defendant
      bears the burden of proving otherwise. In order to be entitled to
      relief on a claim of ineffective assistance of counsel, the PCRA
      petitioner must plead and prove by a preponderance of the
      evidence that (1) the underlying claim has arguable merit; (2)
      counsel whose effectiveness is at issue did not have a
      reasonable basis for his action or inaction; and (3) the PCRA
      petitioner suffered prejudice as a result of counsel’s action or
      inaction. . . . Where it is clear that a petitioner has failed to




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       meet any of the three, distinct prongs of the Pierce[4] test, the
       claim may be disposed of on that basis alone, without a
       determination of whether the other two prongs have been met.

Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008) (citations

omitted).

       In his first issue, Appellant claims that plea counsel was per se

ineffective for failing to file a direct appeal or a motion for reconsideration of

Appellant’s sentence.       (See Appellant’s Brief, at 9-16).   He argues that a

review of the totality of the circumstances establishes that he asked counsel

to file a motion for reconsideration and a direct appeal, and counsel was per

se ineffective for failing to file either. (See id. at 16). We disagree.

       In order for us to find counsel ineffective for failing to file a direct

appeal, an appellant “must prove that he requested an appeal and that

counsel disregarded that request.” Commonwealth v. Knighten, 742 A.2d

679, 682 (Pa. Super. 1999), appeal denied, 759 A.2d 383 (Pa. 2000)

(citation omitted).      In Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

1999), the Pennsylvania Supreme Court held that where an appellant can

show that counsel was unjustified in failing to file a requested direct appeal,

the prejudice prong for an ineffective assistance of counsel claim is satisfied

and appellant is not required to establish his innocence or demonstrate the

merits of the underlying claim.         See Lantzy, supra at 572.    However, in

alleging that counsel was ineffective for failing to file a motion to reconsider,
____________________________________________


4
    Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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“[an] appell[ant] must satisfy the Strickland[5]/Pierce actual prejudice

standard.” Commonwealth v. Reaves, 923 A.2d 1119, 1129 (Pa. 2007).

        Here, after conducting an evidentiary hearing, the PCRA court found

        that there is no compelling evidence that Appellant ever
        requested that Mr. Busico file a direct appeal.       Mr. Busico
        testified that no direct appeal was ever mentioned by Appellant
        or Appellant’s family. Additionally, the letters that Mr. Busico
        sent to Appellant and his family bear out the fact that a direct
        appeal was not a subject broached in the case. . . . As such, no
        request was made by Appellant that Mr. Busico file the direct
        appeal, and therefore, Mr. Busico was not ineffective for failing
        to make a filing that was not requested of him.

(PCRA Ct. Op., at 10) (record citations omitted).

        Upon review, viewing the evidence of record in a light most favorable

to the Commonwealth as prevailing party, we defer to the PCRA court’s well

supported finding that neither Appellant nor his family requested that

counsel file a direct appeal. See Jones, supra at 293; Lantzy, supra at

572; Knighten, supra at 682. Accordingly, we conclude that Appellant has

not met his burden of proving ineffective assistance of counsel, and is

therefore not entitled to relief. See Henkle, supra at 20; Steele, supra at

796.

        Furthermore, we note that Appellant has failed to distinguish between

his claim that counsel was ineffective for failing to file a direct appeal and his

claim    that counsel was        ineffective   for   failing to   file   a motion for

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5
    Strickland v. Washington, 466 U.S. 668 (1984).



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reconsideration. (See Appellant’s Brief, at 9-16). Appellant did not attempt

to plead and prove that his motion for reconsideration would have merit,

that counsel was not reasonable for failing to file such motion, or that he

suffered prejudice as a result. See Steele, supra at 796; Reaves, supra

at 1129.    Moreover, the record supports the PCRA court’s finding that

Appellant did not instruct counsel to file a motion to reconsider sentence.

(See PCRA Ct. Op., at 10); Jones, supra at 293. Accordingly, we conclude

that Appellant has not met his burden of proving that counsel was ineffective

for failing to file a motion for reconsideration. See Steele, supra at 796;

Henkle, supra at 20. Appellant’s first issue does not merit relief.

      In his second issue, Appellant claims that counsel was ineffective for

inducing him into entering an involuntary and unknowing guilty plea. (See

Appellant’s Brief, at 16-21). He argues that counsel made false promises to

him, specifically that he would receive the mandatory minimum sentence of

not less than three nor more than six years of imprisonment, and that his

sentence would be imposed concurrently with the sentence imposed for his

probation violation. (See id. at 16-17). We disagree.

            A criminal defendant has the right to effective counsel
      during a plea process as well as during a trial. 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.



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Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations and quotation marks omitted).

       Here, the PCRA court found that:

              The testimony from Appellant’s PCRA hearing establishes
       that no promises of any sentence were made to Appellant. Mr.
       Busico confirmed that he did not promise Appellant that he
       would receive a three (3) to six (6) year sentence if he [pleaded]
       guilty. Moreover, Appellant’s contention does not square with
       the very terms of Mr. Busico’s representation, in that he would
       only represent Appellant in the event that Appellant entered a
       guilty plea. We note that there would be no need for Mr. Busico
       to convince Appellant into pleading guilty by offering promises of
       a particular sentence when he only entered his appearance as a
       result of Appellant’s previous representation that he would be
       pleading guilty.6 . . .

                                       *       *    *

              Lastly, the record of Appellant’s guilty plea hearing further
       points to no promises being made to Appellant regarding his
       sentence. While administering a colloquy to Appellant in a group
       setting, the exchange between this [c]ourt and Appellant went
       as follows:

          The [c]ourt:      [Has a]nybody threatened or forced you to
          plead guilty?

          Appellant []:     No.

          The [c]ourt: [Has a]nybody promised you what my
          sentence will be?

          Appellant []:     No.

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6
  Appellant denies that Mr. Busico was retained only in the event of a guilty
plea. However, Appellant admits that Mr. Buchanan of the Public Defender’s
Office would have represented him at trial, if Appellant had chosen instead
to take the case to trial. (See N.T. PCRA Hearing, 9/04/15, at 16).



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     (N.T. Guilty Plea Hearing, at 11). When given the opportunity to
     divulge any promises that were made by trial counsel or any
     other person, Appellant confirmed that no promises were
     made regarding any potential sentence that could be
     imposed. Considering the fact that the testimony and evidence
     produced at Appellant’s PCRA hearing, coupled with Appellant’s
     admissions under oath at his guilty plea hearing, contradict any
     suggestion that Appellant was promised a particular sentence,
     there is no value to the claim that Appellant’s guilty plea was not
     knowing, intelligent, or voluntary due to that reason. Therefore,
     Appellant’s plea counsel cannot be ineffective when the
     underlying claim lacks merit.

(PCRA Ct. Op., at 8-9) (record citation formatting provided) (emphasis

added).

     Upon review, viewing the evidence of record in a light most favorable

to the Commonwealth as prevailing party, we defer to the PCRA court’s well-

supported findings of fact that counsel did not induce Appellant to plead

guilty by making any promises. See Jones, supra at 293; Henkel, supra

at 20; (see N.T. Guilty Plea Hearing, 10/18/12, at 11 (guilty plea colloquy

during which Appellant confirmed that he was not promised what his

sentence would be and was pleading guilty of his own free will)). Thus, we

conclude that Appellant has not established that his guilty plea was not

knowing,   intelligent,   or   voluntary.      See   Hickman,   supra   at   141.

Accordingly, Appellant has not met his burden of proving that counsel

rendered ineffective assistance causing him to enter an involuntary or

unknowing plea.    See id.      Appellant’s second issue does not merit relief.

The PCRA court properly denied relief.

     Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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