J-S72004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JODY GORDON

                            Appellant                No. 1959 MDA 2015


                 Appeal from the PCRA Order October 23, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0007467-2013


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED FEBRUARY 22, 2017

        Appellant, Jody Gordon, appeals from the order entered in the York

County Court of Common Pleas, which denied his first petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant counsel’s

petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On July 9, 2014, Appellant entered an open guilty plea to one count of

possession with intent to deliver a controlled substance (“PWID”), in

connection with Appellant’s sale of 6.4 grams of cocaine to a confidential

informant (“C.I.”) on July 9, 2013. Appellant executed a written guilty plea

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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colloquy confirming his plea was voluntary. The written plea colloquy made

clear Appellant was entering an open guilty plea, leaving Appellant’s

sentence   to   the   discretion   of   the   trial    court.    Appellant   expressly

acknowledged that the court could impose Appellant’s sentence consecutive

to any other sentence Appellant might be serving.               During the oral guilty

plea colloquy, the court recited the factual basis for the plea; and Appellant

agreed he was guilty of the crime charged. The court twice reiterated there

was   no   agreement     as   to   sentencing.         Additionally,   notwithstanding

Appellant’s statements in some earlier proceedings that he was dissatisfied

with plea counsel, Appellant agreed he wanted to plead guilty despite any

reservations or complaints about plea counsel.             At the conclusion of the

guilty plea colloquy, the court accepted Appellant’s plea as knowing,

intelligent, and voluntary. The court deferred sentencing for preparation of

a pre-sentence investigation (“PSI”) report.

      On July 29, 2014, Appellant appeared for sentencing in the current

PWID case and for sentencing at docket number CP-67-CR-0005473-2013

(“docket 5473-2013”), in relation to convictions for persons not to possess

firearms and receiving stolen property (“RSP”).                  The Commonwealth

recommended that the court impose an aggregate sentence of 5-10 years’

imprisonment at docket 5473-2013, and a sentence of 2½-5 years’

imprisonment in the current PWID case, to run consecutively.                  Defense

counsel argued for concurrent sentences.              The court noted Appellant was


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also serving at that time a 5-10 year sentence at a third docket number, CP-

67-CR-0001636-2012          (“docket     1636-2012”).2       The   court   sentenced

Appellant at docket 5473-2013, to 5-10 years’ imprisonment for the persons

not to possess conviction, plus a concurrent 1-2 year sentence for RSP. The

court imposed the sentence at docket 5473-2013 concurrent to the sentence

Appellant was already serving at docket 1636-2012. In the present PWID

case,    the   court   sentenced     Appellant   to   2½-5   years’   imprisonment,

consecutive to the sentence at docket 5473-2013.              Appellant did not file

post-sentence motions or a direct appeal.

        On February 5, 2015, Appellant filed a timely pro se PCRA petition

alleging plea counsel’s ineffectiveness, and he filed an amended pro se

petition on July 31, 2015. The PCRA court appointed counsel on August 14,

2015 (“PCRA counsel”).          On October 23, 2015, the court held a PCRA

hearing, during which plea counsel and Appellant testified. At the conclusion

of the hearing, the court denied PCRA relief. Appellant timely filed a notice

of appeal on November 9, 2015. On November 25, 2015, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b); Appellant complied.

        On April 22, 2016, PCRA counsel (who is also appellate counsel) filed,

in this Court, an application to withdraw as counsel and an accompanying
____________________________________________


2
  Appellant committed the PWID offense at issue while he was on trial at
docket 1636-2012.



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appellate brief pursuant to Commonwealth v. Turner, 518 Pa. 491, 544

A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

1988) (en banc). In his Turner/Finley brief, counsel raised one issue on

appeal (plea counsel’s alleged ineffective assistance for promising Appellant

a concurrent sentence if he pled guilty) and explained why that issue lacked

merit.   Appellant subsequently filed a pro se responsive brief, claiming

counsel had failed to address other issues raised in Appellant’s PCRA

petition, which Appellant wanted to advance on appeal. Because counsel did

not list those issues in his Turner/Finley brief and explain why they lacked

merit, this Court concluded counsel had failed to comply with the technical

requirements of Turner/Finley. Consequently, on December 8, 2016, this

Court denied counsel’s April 22, 2016 application to withdraw and remanded

the matter with instructions for counsel to file (1) an advocate’s brief, or (2)

a compliant Turner/Finley brief, additionally addressing the other issues

enumerated in Appellant’s pro se responsive brief, with an accompanying

petition to withdraw.

      As a prefatory matter, on January 9, 2017, appellate counsel filed a

new application to withdraw and a supplemental Turner/Finley brief.

Before counsel can be permitted to withdraw from representing a petitioner

under the PCRA, Pennsylvania law requires counsel to file a “no-merit” brief

or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas,

836 A.2d 940 (Pa.Super. 2003).


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        [C]ounsel must…submit a “no-merit” letter to the [PCRA]
        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.

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

citations omitted).   “Substantial compliance with these requirements will

satisfy the criteria.” Karanicolas, supra at 947.

     Instantly, counsel’s January 9, 2017 motion to withdraw as counsel,

and Turner/Finley brief, detail the nature of counsel’s review and explain

why all the issues raised in Appellant’s pro se responsive brief lack merit.

Counsel’s brief also demonstrates he reviewed the certified record and found

no meritorious issues for appeal.   Counsel notified Appellant of counsel’s

request to withdraw and advised Appellant regarding his rights.         Thus,

counsel substantially complied with the Turner/Finley requirements. See

Wrecks, supra; Karanicolas, supra.

     Counsel raises the following issues in the supplemental brief filed on


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appeal:

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN APPELLANT RECEIVED
          INEFFECTIVE ASSISTANCE OF COUNSEL SUCH THAT HE
          UNKNOWINGLY OR INVOLUNTARILY ENTERED A PLEA OF
          GUILTY?

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
          INEFFECTIVE FOR FAILING TO MOVE FOR DISMISSAL OF
          THE CHARGES BASED ON PREJUDICIAL PREARREST
          DELAY?

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
          INEFFECTIVE FOR FAILING TO PROVIDE APPELLANT WITH
          PRETRIAL DISCOVERY MATERIAL?

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
          INEFFECTIVE FOR FAILING TO ADVISE APPELLANT ON THE
          AVAILABILITY OF AN ALIBI DEFENSE?

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
          INEFFECTIVE FOR FAILING TO CHALLENGE APPELLANT’S
          ALLEGED MANDATORY MINIMUM SENTENCE?

          WHETHER THE PCRA COURT ERRED IN DENYING
          APPELLANT’S PCRA PETITION WHEN COUNSEL WAS
          INEFFECTIVE FOR FAILING TO FILE A POST-SENTENCE
          MOTION AND/OR DIRECT APPEAL ON APPELLANT’S
          BEHALF?

(Supplemental Turner/Finley Brief at 4).

     Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

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A.2d 319 (2008). This Court grants great deference to the findings of the

PCRA court if       the    record contains any support for           those    findings.

Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied,

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

       For purposes of disposition, we combine Appellant’s issues. Appellant

argues plea counsel was ineffective in the following ways: (1) plea counsel

promised Appellant the court would impose his PWID sentence concurrent to

the sentence at docket 5473-2013, which caused Appellant to enter an

unknowing and involuntary guilty plea; (2) plea counsel failed to move for

dismissal of the charges based on “prejudicial pre-arrest delay”;3 (3) plea

counsel did not provide Appellant with pre-trial discovery; (4) plea counsel

failed to advise Appellant on the availability of an alibi defense; (5) plea

counsel did not challenge Appellant’s alleged mandatory minimum sentence;

and (6) plea counsel neglected to file a post-sentence motion and/or direct

appeal on Appellant’s behalf. We disagree with Appellant’s contentions.

       The    law   presumes      counsel      has   rendered   effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

____________________________________________


3
  At the PCRA hearing, Appellant claimed plea counsel was ineffective for
failing to file a pre-trial suppression motion or motion to dismiss based on a
lack of evidence. Appellant did not argue pre-arrest delay.



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appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective   assistance   of   counsel,   a   petitioner    must   show,   by   a

preponderance of the evidence, ineffective 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. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.

2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).             The petitioner

must demonstrate: (1) the underlying claim has arguable merit; (2) counsel

lacked a reasonable strategic basis for his action or inaction; and (3) but for

the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.             Id. at 880.

“The petitioner bears the burden of proving all three prongs of the test.” Id.

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the…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, 599 Pa. 341, 360, 961 A.2d 786, 797

(2008).

        “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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)).               “Where the defendant


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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.” Moser, supra. Pennsylvania law

does not require the defendant to “be pleased with the outcome of his

decision to enter a plea of guilty[; a]ll that is required is that his decision to

plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-

29.   A guilty plea will be deemed valid if the totality of the circumstances

surrounding the plea shows that the defendant had a full understanding of

the nature and consequences of his plea such that he knowingly and

intelligently entered the plea of his own accord.          Commonwealth v.

Fluharty, 632 A.2d 312 (Pa.Super. 1993). Pennsylvania law presumes the

defendant is aware of what he is doing when he enters a guilty plea, and the

defendant bears the burden to prove otherwise.             Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa.Super. 2003). Mere disappointment in the

sentence does not constitute the necessary “manifest injustice” to render the

defendant’s guilty plea involuntary. Id. at 522. See also Commonwealth

v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32

A.3d 1276 (2011) (reiterating principle that courts discourage entry of plea

as sentence-testing device).

      With respect to a claim of ineffective assistance of counsel for failure

to call a witness, this Court has stated:

         When raising a failure to call a potential witness claim, the
         PCRA petitioner satisfies the performance and prejudice

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        requirements of the [ineffective assistance of counsel] test
        by establishing that:

            (1) the witness existed; (2) the witness was
            available to testify for the defense; (3) counsel knew
            of, or should have known of, the existence of the
            witness; (4) the witness was willing to testify for the
            defense; and (5) the absence of the testimony of the
            witness was so prejudicial as to have denied the
            defendant a fair trial.

        Commonwealth v. Washington, 592 Pa. 698, [721,]
        927 A.2d 586, 599 (2007). To demonstrate…prejudice,
        the PCRA petitioner must show how the uncalled [witness’]
        testimony would have been beneficial under the
        circumstances of the case.

Commonwealth v. Johnson, 600 Pa. 329, 351-52, 966 A.2d 523, 536

(2009) (some internal citations and quotation marks omitted).

     An alibi is “a defense that places the defendant at the relevant time in

a different place than the scene involved and so removed therefrom as to

render it impossible for him to be the guilty party.”     Commonwealth v.

Rainey, 593 Pa. 67, 98, 928 A.2d 215, 234 (2007) (internal citations

omitted).   “To show ineffectiveness for not presenting alibi evidence,

Appellant must establish that counsel could have no reasonable basis for his

act or omission.” Id.

     Where a PCRA petitioner claims counsel was ineffective for failing to

file post-sentence motions, the petitioner must plead and prove he asked

counsel to file post-sentence motions on his behalf, counsel refused his

request, counsel lacked a rational basis for his refusal, and prejudice.

Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119 (2007). On the

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other hand, where a PCRA petitioner claims counsel was ineffective for

failing to file a direct appeal, the petitioner must plead and prove only that

he asked counsel to file a direct appeal on his behalf and counsel

unjustifiably refused the petitioner’s request, that is, counsel lacked a

rational basis for refusing the request. Commonwealth v. Lantzy, 558 Pa.

214, 736 A.2d 564 (1999) (holding where there is unjustified failure to file

requested direct appeal, conduct of counsel falls beneath range of

competence demanded of attorneys in criminal cases and denies appellant

effective assistance of counsel; in these circumstances, prejudice is

presumed and PCRA petitioner need not establish prejudice under general

ineffectiveness test).

       Instantly, the court held a PCRA hearing on October 23, 2015. At the

beginning of the hearing, PCRA counsel conceded Appellant’s PWID sentence

did not include a mandatory minimum.               Appellant testified, inter alia: (1)

plea counsel did not provide him with discovery before Appellant entered his

guilty plea; Appellant said he would not have pled guilty if he reviewed the

discovery beforehand because the discovery showed the Commonwealth had

no surveillance footage4 or pre-marked money to use as evidence against

him; (2) plea counsel failed to file a “suppression motion”; Appellant insisted

the Commonwealth had no pictures of the transaction between Appellant
____________________________________________


4
 The affidavit of probable cause indicates the police physically observed the
drug transaction.



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and the C.I., so a pre-trial motion could have secured dismissal of the case;

(3) plea counsel promised Appellant the court would impose his PWID

sentence concurrent to other sentences Appellant was serving or facing;

Appellant acknowledged the written guilty plea stating the plea was open as

to sentencing, but Appellant claimed he completed the written guilty plea

based solely on plea counsel’s representations that Appellant would receive

concurrent sentences; and (4) Appellant was somewhere else at the time of

the crime, so he is innocent of PWID. (See N.T. PCRA Hearing, 10/23/15, at

6-23).

      Plea counsel testified, inter alia: (1) he made clear to Appellant the

plea agreement was open as to sentencing; plea counsel did not promise

Appellant anything in terms of sentencing; plea counsel informed Appellant

the court might run his sentences concurrently, but counsel did not

guarantee that result; (2) plea counsel did not file a pre-trial suppression

motion because it would have lacked merit; (3) plea counsel admitted he did

not provide Appellant with discovery immediately, but he confirmed

Appellant had all discovery prior to entering his guilty plea; (4) plea counsel

did not pursue an alibi defense because Appellant failed to supply him with

the names of Appellant’s alleged alibi witnesses; Appellant gave counsel only

Appellant’s wife’s contact information, but counsel could not get in touch

with her; (5) Appellant and plea counsel had a lengthy discussion about

Appellant’s decision to plead guilty; following sentencing, Appellant was


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unhappy with his sentence and complained about his sentence to counsel;

plea counsel told Appellant that plea counsel did not believe Appellant had

any appealable issues; Appellant agreed with counsel that there was no

reason to file post-sentence motions or an appeal in this case; Appellant

asked plea counsel to file post-sentence motions and an appeal in another

case (at docket 1636-2012), but Appellant made no request in this PWID

case; and (6) plea counsel had conversations with the District Attorney

about Appellant entering a negotiated guilty plea with a concurrent sentence

recommendation but those conversations involved one of Appellant’s other

cases, not this PWID case. (Id. at 25-54).

      During argument from counsel, PCRA counsel conceded Appellant’s

issue regarding the filing of a pre-trial suppression motion merited no relief.

At the conclusion of the PCRA hearing, the court stated:

         Right. All right, well, [the court] listened carefully to the
         testimony. The [c]ourt does recall [Appellant’s] cases, and
         we’re here today on a Post-Conviction [Relief] Act petition.

         The thrust of the argument is that [Appellant] was denied
         effective assistance of counsel, and [the court] would note
         that the Post-Conviction [Relief] Act requires that to
         sustain a claim for ineffective assistance of counsel,
         [Appellant] must demonstrate that [Appellant] was denied
         the effective assistance of counsel to such an extent that it
         so undermined the truth-determining process that no
         reliable adjudication of guilt or innocence could have been
         taken. That’s directly from the Post-Conviction Relief Act.

         The case law further states that the presumption is that
         counsel is effective and that the burden of proving that this
         presumption is false rests with [Appellant].


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        The issues here are several. I think [the court] can
        summarize them. The one is that a motion to suppress
        wasn’t filed. [The court does not] see any indication that
        there was merit to that claim and that [a motion] would
        have provided a different result in the case.

        There’s also the issue of discovery, and while we could
        have a debate as to when that should have been provided,
        when it could have been provided, it was, in fact, made
        available to [Appellant].      [The court believes] the
        transcript from prior court proceedings indicates that was
        provided, and, again, it may not have been provided as
        early as [Appellant] would have wished, but, again, [the
        court does not] see that would have changed the outcome
        of the case.

        The main issue is the issue of his entering a guilty plea.
        Clearly [Appellant] did not get the result that he was
        looking for or expecting, and he is not happy about what
        the [c]ourt’s sentence was. Particularly that’s the fact that
        the gun charge was made consecutive. [The court thinks
        it] made clear during [the] colloquy that there was no
        promise for any particular sentence, either an amount or
        concurrent. I can state for the record that it’s the practice
        of this [c]ourt that when there are guns involved, they
        typically get consecutive sentences because of what we
        perceive as the threat to the safety of the community.

        So the issue is, was [Appellant] denied the effective
        assistance of counsel, if at all, to the extent that it
        undermined the truth-determining process and that no
        reliable adjudication of guilt or innocence could have
        occurred. [The court] cannot find that. [The court does
        not] believe that did occur. [The court is] going to deny
        the motion for post-conviction relief at this time.

(Id. at 63-65). In its Rule 1925(a) opinion, the PCRA court reiterated:

        [The court] did not find that [plea counsel’s] supposed
        failure to file a suppression motion would have led to a
        different result and so Appellant failed the third prong of
        the test for ineffectiveness of counsel. [The court] did not
        find that there was a substantially greater chance of a
        favorable outcome for Appellant if [plea counsel] had

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            provided discovery to Appellant earlier in the process,
            which necessarily meant that Appellant failed the third
            prong of the test for ineffectiveness of that particular
            claim. And [the court] could not find counsel ineffective
            for his supposed assurances to Appellant that Appellant
            would not receive a consecutive sentence where Appellant
            was confronted by our thorough colloquy advising him
            repeatedly that with an open plea no one could provide
            Appellant assurances as to the actual sentence. Appellant,
            again, failed the third prong of the test for ineffectiveness
            of counsel.

(PCRA Court Opinion, filed February 4, 2016, at 5) (internal citations

omitted) (emphasis in original).           The record supports the PCRA court’s

analysis.    See Ford, supra; Boyd, supra.          Therefore, Appellant failed to

satisfy the ineffectiveness test on his claims that plea counsel’s promise of

concurrent sentences caused Appellant to enter an unknowing plea; plea

counsel failed to file a pre-trial suppression motion or motion to dismiss for

lack of evidence; and plea counsel did not provide Appellant with pre-trial

discovery.5 See Steele, supra; Turetsky, supra.

       Regarding Appellant’s claim that plea counsel failed to advise Appellant

on the availability of an alibi defense, plea counsel testified at the PCRA

____________________________________________


5
  To the extent Appellant challenges on appeal counsel’s failure to move for
dismissal of the charges based on “prejudicial pre-arrest delay,” Appellant
abandoned that claim at the PCRA hearing. Moreover, the record shows
Appellant’s PWID offense occurred on July 9, 2013, while Appellant was on
trial at docket 1636-2012. The Commonwealth filed a criminal complaint
charging Appellant with PWID on September 11, 2013.               Appellant’s
preliminary arraignment was scheduled for the next day. Appellant offers no
legal basis to suggest that a two-month delay in his arrest warranted
dismissal of his case.



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hearing that Appellant supplied no contact information for his purported alibi

witnesses except for his wife, whom plea counsel could not reach.

Additionally, Appellant alleged in his pro se PCRA petition that his wife,

Quinton Jacobs, and Ryan Dell Nesbit would all offer testimony at the PCRA

hearing to support Appellant’s alibi claim. Nevertheless, Appellant presented

only his own testimony at the PCRA hearing and merely stated he was

somewhere else at the time of the PWID offense. Thus, Appellant failed to

satisfy the ineffectiveness test on this claim.       See Johnson, supra;

Washington, supra.

      With respect to Appellant’s claim that plea counsel failed to challenge

the mandatory minimum sentence, PCRA counsel conceded at the PCRA

hearing that Appellant did not receive a mandatory minimum sentence for

his PWID conviction. Thus, the record belies this ineffectiveness claim.

      Concerning Appellant’s claim that plea counsel failed to file post-

sentence motions and/or a direct appeal on Appellant’s behalf, Appellant did

not plead in his pro se PCRA petition or in his amended PCRA petition that he

asked counsel to file post-sentence motions or a direct appeal on his behalf

or that plea counsel was ineffective for failing to consult with Appellant about

whether he wanted to pursue post-sentencing or appellate review.           See

Reaves, supra; Lantzy, supra. Additionally, plea counsel testified at the

PCRA hearing that Appellant agreed there was no reason to file post-

sentence motions or an appeal in this case. Plea counsel further stated that


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Appellant had asked him to file post-sentence motions and an appeal at

docket 1636-2012, but Appellant made no request in this PWID case. The

court’s order denying PCRA relief indicates the court credited plea counsel’s

testimony.     See   Dennis,    supra.       Consequently,   Appellant’s   final

ineffectiveness of counsel claim fails. See Reaves, supra; Lantzy, supra.

Following our independent examination of the record, we conclude the

appeal is frivolous and affirm; we grant counsel’s petition to withdraw.

      Order affirmed; counsel’s petition to withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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