J-S38031-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                        :    IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                          :          PENNSYLVANIA
                                           :
                  Appellee                 :
                                           :
            v.                             :
                                           :
    JAMES MEEK,                            :
                                           :
                  Appellant                :    No. 1874 WDA 2017

                Appeal from the PCRA Order November 16, 2017
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001940-2015

BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:
                                                         FILED JULY 27, 2018

        James Meek (Appellant) appeals from the order entered November 16,

2017, dismissing his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition to withdraw and a brief

pursuant     to   Anders     v.   California,   386   U.S.   738   (1967),   and

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).1 Upon review,

we grant counsel’s petition to withdraw and affirm the order of the PCRA court.




1
 In this Court, counsel filed an Anders brief seeking to withdraw as counsel
on appeal.

        A Turner/Finley no-merit letter, however, is the appropriate
        filing. See Commonwealth v. Turner, [544 A.2d 927 (Pa.
        1988)]; Commonwealth v. Finley, [550 A.2d 213 (Pa. Super.
        1988)] (en banc). Because an Anders brief provides greater
        protection to a defendant, this Court may accept an Anders brief


* Retired Senior Judge assigned to the Superior Court.
J-S38031-18

      On October 19, 2016, Appellant entered a negotiated guilty plea to one

count each of third-degree murder, robbery, and conspiracy to commit

robbery.2 That same day, the trial court, accepting an agreed-upon sentence,

sentenced Appellant to an aggregate term of 20 to 40 years of imprisonment.

On October 28, 2016, Appellant timely filed post-sentence motions seeking,

inter alia, to withdraw his guilty plea based on averments that his guilty plea

was not “knowing, intelligent and voluntary[,]” and was the product of

“ineffective assistance of counsel.” Post-Sentence Motions, 10/28/2016, at 1

(unnumbered).     In January 2017, prior to the disposition of his motions,

Appellant filed a motion to withdraw his post-sentence motions asserting that

if he still desired to pursue an ineffective assistance of counsel claim, he would

file a PCRA petition.     Motion to Withdraw Defendant’s Post-Sentencing

Motions, 1/30/2017, at 1 (unnumbered). The trial court granted Appellant’s

motion on February 8, 2017.




      in lieu of a Turner/Finley letter. Commonwealth                    v.
      Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super 2011).
2
  Prior to pleading guilty, counsel for Appellant filed a motion to suppress.
Appellant later acknowledged in his written guilty plea colloquy that he
understood that by pleading guilty he was giving “up the right not only to file
pretrial motions, but also [was abandoning or giving] up any pretrial motions
already filed and not yet decided and any pretrial motions in which decisions
were already made.” Guilty Plea, Explanation of Defendant’s Rights,
10/19/2016, at 5.
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      On April 13, 2017, Appellant timely filed a counselled PCRA petition, and

an evidentiary hearing was held. By order dated November 16, 2017, the

PCRA court denied Appellant’s PCRA petition. Appellant timely filed a notice of

appeal. The PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and counsel filed a

statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

In lieu of filing an opinion, the PCRA court directed us to its November 16,

2017 order denying Appellant’s PCRA petition.

      Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

             … Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the nature
      and extent of counsel’s diligent review of the case, listing the
      issues which the petitioner wants to have reviewed, explaining
      why and how those issues lack merit, and requesting permission
      to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no-merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

            If counsel fails to satisfy the foregoing technical
      prerequisites of Turner/Finley, the court will not reach the merits
      of the underlying claims but, rather, will merely deny counsel’s
      request to withdraw. Upon doing so, the court will then take
      appropriate steps, such as directing counsel to file a proper
      Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do satisfy the technical demands of Turner/Finley, the

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J-S38031-18

      court — trial court or this Court — must then conduct its own
      review of the merits of the case. If the court agrees with counsel
      that the claims are without merit, the court will permit counsel to
      withdraw and deny relief. By contrast, if the claims appear to
      have merit, the court will deny counsel’s request and grant relief,
      or at least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations

omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.           Therefore, we will consider the

substantive issue contained in counsel’s brief.

      In her brief, counsel states the following question for this Court’s review:

“Did [Appellant] establish that his guilty plea was not knowingly and

voluntarily entered due to the ineffective assistance of trial counsel, and

therefore this Court must find that the [PCRA] court abused its [discretion] in

denying relief under the [PCRA]?”    Anders Brief at 6 (suggested answer and

unnecessary capitalization omitted). Specifically, Appellant contends his plea

counsel “did not adequately explain the different degrees of homicide,

particularly [s]econd[-d]egree [m]urder, or the possible outcomes, nor did he

discuss the quality of the evidence against him, possible constitutional

challenges, and strategies and defenses.” Anders Brief at 10. This includes

counsel’s failure to litigate the motion to suppress that was filed prior to the

entry of his plea. Id. We consider these claims mindful of the following.

      “On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

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record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super. 2008).

Because Appellant challenges the actions of plea counsel, we observe the

following.

      “Allegations that counsel misadvised a criminal defendant in the plea

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA [42 Pa.C.S. § 9543(a)(2)(ii),] not the section

specifically    governing   guilty   pleas   [42   Pa.C.S.   §   9543(a)(2)(iii)].”3

Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

               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

3 With respect to the aforementioned issue, counsel only relies on 42 Pa.C.S.
§ 9543(a)(2)(ii). See Anders Brief at 9. Regardless, even if we viewed this
claim as a challenge to the voluntariness of Appellant’s plea pursuant to 42
Pa.C.S. § 9543(a)(2)(iii), we would not grant relief. For the reasons that
follow, we would hold that the PCRA court did not err by concluding that
Appellant’s plea was knowing and voluntary.
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J-S38031-18

            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, 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, 192-93 (Pa. Super. 2013)

(citations and quotation marks omitted).

      In the instant case, during an on-the-record discussion with counsel,

Appellant acknowledged that counsel had: (1) visited Appellant at the

Allegheny County Jail, brought along the discovery in his case, and went

through the discovery “word by word[;]” (2) went through the elements of

first, second, and third-degree murder; (3) discussed the motions that had

been filed in front of the trial court prior to the entry of Appellant’s plea; and

(4) discussed the plea agreement which Appellant accepted.                   N.T.,

10/19/2016/2016, at 11-12.       When further questioned by the trial court,

Appellant affirmed that the court read the charges as well as the maximum

penalties Appellant was facing, that he had the opportunity to talk to counsel

about the charges, and that Appellant was not forced, threatened, or promised

anything in exchange for his plea. Id. at 8-9. The foregoing was the basis

for the PCRA court’s denial of Appellant’s petition.

          After careful consideration of the [p]etition itself, the
      Commonwealth’s [a]nswer thereto, testimony presented at the

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J-S38031-18

      hearing on said [p]etition held this day, and the arguments of
      counsel that followed, th[e PCRA c]ourt concludes that
      [Appellant’s] trial counsel was not ineffective in either
      recommending, or counseling [Appellant] with regard to, his guilty
      plea. Trial counsel was credible and believable in his testimony at
      the hearing that he duly advised the [Appellant] of all matters
      necessary for [Appellant] to make a knowing, voluntary and
      intelligent plea.    He testified credibly and believably that
      [Appellant] appeared to understand all that had been explained to
      him and that trial counsel had no questions regarding
      [Appellant’s] competence or ability to understand. [Appellant] did
      not testify credibly regarding trial counsel’s explanations of the
      degrees of murder to him. He stated that second[-]degree murder
      and its possible sentence of life without possibility of parole had
      never been explained to him before the plea. However, he
      testified exactly opposite of this position during his plea colloquy.

             Additionally, [Appellant’s] claims of the ineffectiveness of
      trial counsel with regards to the failure to litigate the [m]otion to
      [s]uppress are meritless. [Appellant] claims that withdrawing the
      [m]otion to [s]uppress was not reasonably designed to effectuate
      his interests. However, trial counsel credibly and believably
      testified that the [m]otion was withdrawn with [Appellant’s]
      approval and in order to accept a plea to third[-]degree murder,
      thereby eliminating the possibility of a second[-]degree murder
      conviction and its penalty of life in prison with no possibility of
      parole. [Appellant] acknowledged [at the PCRA hearing] that he
      gave consent to trial counsel to withdraw the [m]otion.

Trial Court Order, 11/16/2017, at 1-2 (unnumbered).

      The court’s determination is supported by the record. During Appellant’s

guilty plea and sentencing hearing, Appellant relayed that he was apprised of

the elements of the various degrees of murder; acknowledged he discussed

the plea agreement with counsel and signed the written guilty plea colloquy,

in which he, inter alia, indicated that he understood that by pleading guilty,

he was abandoning any pretrial motions already filed; and relayed to the trial



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court upon further examination that he was not coerced, forced, or promised

anything in exchange for pleading guilty. N.T., 10/19/2016, at 7-9, 12.

      “A defendant is bound by the statements made during the plea

colloquy, and a defendant 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).

      Additionally, the PCRA court found that plea counsel testified credibly at

the PCRA hearing. Specifically, counsel testified that he advised Appellant on

the nature of the charges and the plea bargain; that Appellant understood the

defenses he was giving up by pleading guilty; that he had discussed

Appellant’s case and the “potential resolution[,]” with Appellant eight to ten

times; and that Appellant was aware that a plea of guilty would result in the

withdrawal the suppression motion that was filed previously.                  N.T.,

11/16/2017, at 1-6.4 “The law is clear that we are bound by the credibility

determinations of the PCRA court, where such findings have support in the

record.” Commonwealth v. Clark, 961 A.2d 80, 87 (Pa. 2008).

      To determine a defendant’s actual knowledge of the implications
      and rights associated with a guilty plea, a court is free to consider
      the totality of the circumstances surrounding the plea. The
      concept of examining the totality of the circumstances
      surrounding a plea in order to determine whether a plea was
      voluntarily, knowingly, and intelligently entered, is well
      established. … Indeed, as the law makes clear, a trial court may
      consider a wide array of relevant evidence under this standard in

4
 Notably, at the PCRA hearing, Appellant acknowledged that plea counsel
sought and received Appellant’s consent to withdraw the motion to suppress.
N.T., 11/16/2017, at 8.
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      order to determine the validity of a claim and plea agreement
      including, but not limited to, transcripts from other proceedings,
      off-the-record communications with counsel, and written plea
      agreements.

Commonwealth v. Allen, 732 A.2d 582, 588–89 (Pa. 1999) (citation and

footnote removed).

      In light of the foregoing, we agree with PCRA counsel that based upon

the PCRA court’s findings and the record which supports them, Appellant’s

contention that plea counsel’s ineffectiveness caused him to enter an

unknowing and involuntary plea has no merit.5 Therefore, the PCRA court did

not err by dismissing Appellant’s PCRA petition due to Appellant’s failure to

meet his burden in demonstrating plea counsel’s ineffectiveness. Accordingly,

we affirm the order of the PCRA court denying his PCRA petition and grant

counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2018



5 Since we have determined that Appellant’s underlying claim has no merit,
we need not continue with the remainder of the analysis. “A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to meet any of
th[e three] prongs.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
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