J-S18001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICARDO BERNARD MCCLURE, JR.               :
                                               :
                       Appellant               :   No. 1583 MDA 2019


           Appeal from the PCRA Order Entered September 10, 2019,
               in the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0005025-2017.


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 12, 2020

        Ricardo Bernard McClure, Jr, appeals from the order denying his first

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).      42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The pertinent facts and procedural history are as follows: On December

10, 2018, McClure, then eighteen years of age, entered an open guilty plea to

second-degree murder, robbery, and criminal conspiracy. These charges stem

from an incident that occurred on or about August 16, 2017, at which time

McClure, then sixteen years of age, and two co-defendants agreed to meet

with the victim who was going to supply them with an ounce of marijuana in

exchange for $230.00. McClure and his co-defendants did not have the money

for the drugs, and they conspired to rob the victim. At some point during the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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exchange one of McClure’s co-defendants shot the victim, who died as a result

of his injuries.

      On February 6, 2019, the trial court sentenced McClure, on his second-

degree murder conviction, to 35 years to life in prison. The trial court imposed

concurrent sentences for the other charges. The trial court denied McClure’s

motion to reconsider sentence. McClure did not file a direct appeal.

      On July 15, 2019, McClure filed a counseled PCRA petition in which he

claimed that plea counsel was ineffective for failing to advise him that he was

facing a mandatory thirty-year sentence by pleading guilty to second-degree

murder. The Commonwealth filed a response. On August 21, 2019, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intention to dismiss McClure’s

PCRA petition without a hearing. McClure filed a response. By order entered

September 10, 2019, the PCRA court denied McClure’s PCRA petition. This

timely appeal followed. Both McClure and the PCRA court have complied with

Pa.R.A.P. 1925.

       McClure now raises the following issue:

          1. Denial of PCRA. The [PCRA] court did not hold an
             evidentiary hearing on McClure’s PCRA petition, where
             his attorney was ineffective in advising him as to the
             required mandatory minimum sentence and his attorney
             was ineffective for failing to request to withdraw his plea.
             Did the [PCRA] court err in not holding an evidentiary
             hearing and finding McClure’s [plea counsel] ineffective?

McClure’s Brief at 6.

      Our scope and standard of review is well settled:



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         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

         When the PCRA court has dismissed a petitioner’s PCRA
         petition without an evidentiary hearing, we review the PCRA
         court’s    decision    for    an   abuse     of    discretion.
         Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013).
         The PCRA court has discretion to dismiss a petition without
         a hearing when the court is satisfied that there are no
         genuine issues concerning any material fact, the defendant
         is not entitled to post-conviction collateral relief, and no
         legitimate purpose would be served by further proceedings.
         Id. To obtain a reversal of a PCRA court’s decision to
         dismiss a petition without a hearing, an appellant must show
         that he raised a genuine issue of material fact which, if
         resolved in his favor, would have entitled him to relief, or
         that the court otherwise abused its discretion in denying a
         hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      McClure’s claims allege the ineffective assistance of plea counsel. To

obtain relief under the PCRA premised on a claim that counsel was ineffective,

a petitioner must establish by a preponderance of the evidence that counsel’s

ineffectiveness so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                “Generally, counsel’s


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performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) petitioner was prejudiced by counsel's act or

omission. Id. at 533. A finding of "prejudice" requires the petitioner to show

"that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id.

      This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

         A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

         We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. The voluntariness of the plea
         depends on whether counsel’s advice was within the range
         of competence demanded of attorneys in criminal cases.

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).

      Regarding the validity of a guilty plea, this Court has explained:

            Pennsylvania has constructed its guilty plea procedures
         in a way designed to guarantee assurance that guilty pleas
         are voluntarily and understandingly tendered. The entry of
         a guilty plea is a protracted and comprehensive proceeding
         wherein the court is obliged to make a specific


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         determination after extensive colloquy on the record that a
         plea is voluntarily and understandingly tendered.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011) (citing

Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)).

      In Yeomans, we further explained that this Court evaluates the

adequacy of the plea colloquy and the voluntariness of the resulting plea by

looking at the totality of the circumstances:

         In order for a guilty plea to be constitutionally valid, the
         guilty plea colloquy must affirmatively show that the
         defendant understood what the plea connoted and its
         consequences.      This determination is to be made by
         examining the totality of the circumstances surrounding the
         entry of the plea. Thus, even though there is an omission
         or a defect in the guilty plea colloquy, a plea of guilty will
         not be deemed invalid if the circumstances surrounding the
         plea disclose that the defendant had a full understanding of
         the nature and consequences of his plea and that he
         knowingly and voluntarily decided to enter the plea.

Yeomans, 24 A.3d at 1047 (citing Fluharty, 632 A.2d at 314-15).

      In this case, the PCRA court concluded McClure’s claim that plea counsel

was ineffective by inducing him to believe that he would receive a 12½ to 25

year sentence was not a basis for post-conviction relief, given review of the

certified record, including McClure’s written and oral colloquies.            First,

regarding McClure’s written plea colloquy, the court explained:

         Here, a written guilty plea colloquy was signed by [McClure]
         and made part of the record. It indicated the charges that
         [McClure] was facing along with the maximum punishment
         (including life in prison). [McClure] indicated that he read,
         wrote, and understood the English language and that he was
         aware of his right to a jury trial, the right to a non-jury trial,
         and the following rights that are attached: including the

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         presumption of innocence, the right to have his attorney file
         pretrial motions, the right to cross-examine witnesses, the
         right to present evidence on his own behalf, and the right to
         testify. The written guilty plea colloquy included a section
         on the type of sentence the court can impose. Finally, the
         written guilty plea colloquy indicated that [McClure]
         understood that he was entering a voluntary plea and that
         he wished to enter a plea of guilty.

PCRA Court Opinion, 8/21/19, at 4-5 (citation omitted).       Additionally, the

PCRA court noted the record revealed McClure had an opportunity to go over

the written plea colloquy with both trial counsel and his family.

      With regard to the McClure’s oral plea colloquy, the PCRA court found

that it revealed that McClure “was not under the influence of any drugs or

alcohol, was not on any medication, and [had] never been in a mental

institution.” Id. at 5. The court further noted that plea counsel “explained

[to McClure] his right to a jury trial and all the rights that entails.” Id. The

PCRA court also acknowledged that McClure stated he had no questions

regarding his guilty plea.   The PCRA court then highlighted the following

exchange from the oral colloquy:

         [BY THE PROSECUTOR:] I just wanted to make sure the
         penalties you’re aware of, sir, as the plea of murder of the
         second degree due to the fact that you [were] 16 years of
         age at the time of that incident, you are not facing an
         automatic life sentence. If you were 18 or older, you would
         be facing automatically a life sentence. However, due to the
         fact that you were 16 years old at the time, you’re looking
         at a sentence on that charge of a minimum of 30 years, but
         it can be anywhere up to a life sentence. The judge has that
         option to impose a sentence anywhere from 30 years to life.
         Are you aware of that?

         [McClure] responded “yes.”


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Trial Court Opinion, 8/21/19, at 5 (citing N.T., 12/10/18, at 9).

      The trial court further noted that at the oral plea colloquy, although

McClure informed the court that he had not discussed the plea with his family

members, plea counsel assured the court that he talked with McClure’s family

that morning “and all throughout the case, Your Honor.           This has been

something that’s been a possibility.” Id. at 6. Finally, the trial court noted

that McClure stated that: 1) he did not need time to speak to his family; 2)

pleading guilty to second-degree murder was in his best interest; 3) he had

sufficient time to discuss his plea with trial counsel; 4) no threats or promises

had been made to get him to plead guilty; and 5) McClure did not have “any

questions about [his] rights at [that] point in time[.]” Id.

      Based upon the totality of these circumstances, the trial court concluded

“the record clearly reflects that [McClure] made a knowing, voluntary and

intelligent plea.” Id.

      The trial court then addressed McClure’s PCRA petition as follows:

            In his PCRA petition, [McClure] alleges that he wished to
         change his plea and that his Mother tried texting [trial
         counsel] on January 23-24, 2019. However, at the time of
         sentencing on February 6, 2019, [McClure’s] mother was
         present but elected not to speak. Nor did [McClure] seek to
         withdraw his guilty plea at the time of sentencing. Thus, we
         cannot find that [trial] counsel was ineffective when the
         record suggests that [plea counsel] went over the guilty plea
         colloquy with [McClure], spoke to [McClure’s] family, and
         indicated on the record that the family did not wish to speak
         at the time of sentencing. [McClure’s mother would have
         had the opportunity to address McClure’s concerns at the
         time of sentencing.]



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             In sum, [McClure] understood the charges and penalties
          that he faced, signed a written guilty plea colloquy that was
          made part of the record, an on-the-record colloquy took
          place, and at no time did [McClure] seek to withdraw his
          guilty plea prior to sentencing.       [McClure’s] claim to
          ineffective assistance of counsel lacks arguable merit and
          there is no showing that he suffered prejudice for the actions
          or inactions of plea counsel. As such, [McClure] entered a
          knowing, voluntary, and intelligent plea.

PCRA Court Opinion, 8/21/19, at 6-7. Our review of the record supports the

PCRA court’s conclusions.

       In arguing to the contrary, McClure claims that the PCRA court erred in

denying his PCRA petition without holding an evidentiary hearing. According

to McClure, plea counsel’s “ignorance of the relevant sentencing law when

inducing [him] to accept his plea offer and subsequent failure to withdraw

[McClure’s] guilty plea constituted ineffective assistance of counsel.”

McClure’s Brief at 15. We cannot agree.

       Our review of the sentencing transcript does confirm that plea counsel

asked the trial court to “step outside of the sentencing guidelines, below the

fully mitigated range, and sentence” McClure to a term of 12½ to 25 years of

imprisonment. N.T., 2/6/19 at 2. This fact, however, in and of itself, does

not create a factual issue of whether plea counsel similarly misadvised McClure

prior to the entry of his guilty plea.1 Indeed, McClure’s answers in his oral

and written guilty plea colloquies refute such a claim.
____________________________________________


1This case differs from those wherein counsel advised the defendant to enter
a guilty plea to an illegal sentence.     See, e.g., Commonwealth v.
Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015).


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      As this Court has summarized:

         Our law presumes that a defendant who enters a guilty plea
         was aware of what he was doing. He bears the burden of
         proving otherwise.

                                      ***

            The long standing rule of Pennsylvania law is that a
         defendant may not challenge his guilty plea by asserting
         that he lied while under oath, even if he avers that counsel
         induced the lies. A person who elects to plead guilty is
         bound by the statements he makes in open court while
         under oath and may not later assert grounds for
         withdrawing the plea which contradict the statements he
         made at his plea colloquy.



                                      ***

         [A] defendant who elects to plead guilty has a duty to
         answer questions truthfully.     We [cannot] permit a
         defendant to postpone the final disposition of his case by
         lying to the court and later alleging that his lies were
         induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      Here, no “defect” or “omission” occurred during McClure’s guilty plea

colloquy. Yeomans, supra. Instead, McClure claims that we should view the

“totality of circumstances” surrounding his guilty plea differently because he

“cannot be held to the same standard of competence as an adult counterpart.

Although legally an adult by the time of his guilty plea, [McClure’s] background

suggests that his emotion and mental capacity is far more limited than that of

an adult.” McClure’s Brief at 22. This claim fails for two reasons. Initially,


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because this claim was not set forth in his PCRA petition, McClure

inappropriately raises it for the first time on appeal. See generally, Pa.R.A.P.

302(a). In addition, as McClure’s cites no case authority for this claim it is

undeveloped, and therefore waived. See Commonwealth v. Tielsch, 934

A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be

considered on appeal).

      Moreover, the fact that the prosecutor rather than plea counsel

questioned McClure regarding his understanding of the applicable mandatory

minimum is of no significance. Once again, McClure relies on his youth and

other factors to argue that the trial court erred in concluding that “a man of

[his] capacity would understand the nature of the charges against him,

dripped in legalese, and coming from opposing counsel—the very woman

[McClure] knew was trying her very hardest to land him in prison.                No

reasonable lay person, let alone one as young as [McClure], would believe the

words of the perceived enemy.” McClure’s Brief at 27-28. Our law is well

settled, however, “there is no set manner, and no fixed terms,” which must

be   used   to   establish   the   validity    of   a   defendant’s   guilty   plea.

Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004). As the PCRA

court noted above, given his responses in the oral and written plea colloquies,

it had no reason to believe McClure was not fully aware and understood the

consequences of his guilty plea.




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      Thus, for all these reasons, the PCRA court properly dismissed, without

a hearing, McClure’s claim that plea counsel’s ineffectiveness caused him to

enter an invalid plea.

      In his sole issue raised on appeal McClure further contends that the

PCRA court erred in dismissing, without a hearing, his claim that trial counsel

was ineffective for failing to file a pre-sentence motion to withdraw his plea.

This claim was not preserved for appellate review. Our review of McClure’s

counseled PCRA petition indicates that this claim was not raised with sufficient

specificity. Indeed, as it explained above, the PCRA court did not consider

this claim as a separate issue, but considered it as part of his previous

ineffectiveness claim. McClure did not unequivocally raise this second claim

until he filed his Rule 1925(b) statement.         This was too late.      See

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (citation

omitted) (explaining, “[a] party cannot rectify the failure to preserve an issue

by proffering it in response to Rule 1925(b) order”).

      In sum, because our review of the record supports the PCRA court’s

conclusion that McClure’s ineffectiveness claims lack arguable merit or are

waived, the court properly denied his PCRA petition without first holding a

hearing. We therefore affirm its order denying McClure post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/12/2020




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