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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
               Appellee                :
                                       :
         v.                            :
                                       :
MARCUS BROOKING,                       :
                                       :
               Appellant               :     No. 442 EDA 2019

           Appeal from the PCRA Order Entered January 11, 2019
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012983-2013

BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED MAY 19, 2020

     Marcus Brooking (Appellant) appeals from the order of judgment

entered on January 11, 2019, dismissing his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On December 8, 2014, Appellant entered into a negotiated guilty plea,

under which he was sentenced to 20 to 40 years of incarceration for third-

degree murder, a consecutive term of three to six years of incarceration for

a violation of the Uniform Firearms Act (VUFA), and guilt without further

sentencing for possession of an instrument of crime.

     On December 16, 2014, Appellant filed a motion to withdraw his guilty

plea, which the trial court denied on December 19, 2014. Appellant

appealed, and on February 8, 2016, this Court affirmed his judgment of




* Retired Senior Judge assigned to the Superior Court.
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sentence. Commonwealth v. Brooking, 141 A.3d 588 (Pa. Super. 2016)

(unpublished memorandum).

      On October 28, 2016, Appellant pro se timely filed a PCRA petition.

PCRA counsel was appointed and filed an amended petition on October 8,

2018, raising the same claims Appellant had raised on direct appeal.1 The

PCRA court held an evidentiary hearing on January 11, 2019, after which it

dismissed Appellant’s petition.

      This timely-filed notice of appeal followed.2 On appeal, Appellant

frames his issue as whether the PCRA court erred by denying relief despite

Appellant’s involuntary and unknowing entry into his guilty plea. Appellant’s



1  On March 19, 2015, the PCRA court restored Appellant’s direct appeal
rights and Appellant filed his direct appeal. On July 8, 2015, counsel filed a
petition to withdraw as counsel and no-merit brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Appellant also pro se filed a brief with this
Court’s permission. This Court’s February 8, 2016 decision examined the
overlapping issues in both briefs, including whether Appellant’s plea was
knowing, intelligent, and voluntary, and whether plea counsel was
ineffective. Brooking, 141 A.3d 588 (unpublished memorandum at 6-8).
After reviewing Appellant’s written and oral plea colloquies and the
December 8, 2014 plea hearing, we determined that “the record... amply
demonstrates that Appellant’s guilty plea was knowing, intelligent, and
voluntary.” Id. (unpublished memorandum at 8). Accordingly, we found that
Appellant’s issues did not merit relief, affirmed the judgment of sentence,
and granted counsel’s petition to withdraw. Id. (unpublished memorandum
at 9). However, since claims of ineffective assistance of counsel must be
raised on collateral review, we noted that Appellant’s ineffectiveness claim
was premature and dismissed it without prejudice. Id. (unpublished
memorandum at 8).

2The PCRA court complied with Pa.R.A.P. 1925(a). See PCRA Court Opinion,
4/11/2019. The PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal, and none was filed.

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Brief at 3. However, later in his brief, Appellant clarifies that his claim is

based on ineffective assistance of counsel, alleging “counsel unnecessarily

and unfairly pressured [Appellant] into accepting a guilty plea that

[Appellant] did not wish to enter in to.” Appellant Brief at 6.

      In reviewing an appeal from the denial of PCRA relief, our standard of

review is “whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.” Commonwealth v. Barndt,

74 A.3d 185, 192 (Pa. Super. 2013) (quoting Commonwealth v. Garcia,

23 A.3d 1059, 1061 (Pa. Super. 2011)). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Spotz, 18 A.3d 244, 258 (Pa. Super. 2011) (citation

omitted).

      “Allegations that counsel misadvised a criminal defendant in the plea

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA, not the subsection specifically governing guilty

pleas.” Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super.

2003). Although Appellant arguably blends his argument that his plea was

involuntary and unknowing with his ineffectiveness claim, we review this

appeal as the latter, mindful of the following.

      “Counsel is presumed effective, and in order to overcome that
      presumption a PCRA petitioner must plead and prove that: (1)
      the legal claim underlying the ineffectiveness claim has arguable
      merit; (2) counsel’s action or inaction lacked any reasonable
      basis designed to effectuate petitioner’s interest; and (3)
      counsel’s action or inaction resulted in prejudice to petitioner....

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      To demonstrate prejudice, a petitioner must show that there is a
      reasonable probability that, but for counsel’s actions or
      inactions, the result of the proceeding would have been
      different.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). “A failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009).

      Claims of ineffectiveness of counsel raised in the context 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) (internal citations and

quotations omitted). Where a defendant claims to have entered a plea based

on counsel’s improper advice, “the voluntariness of the plea depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Id. Moreover, “a defendant is bound by the

statements which he makes during his plea colloquy ... A defendant may not

assert grounds for withdrawing the plea that contradict statements made

when he pled guilty.” Commonwealth v. Barnes, 687 A.2d 1163, 1167

(Pa. Super. 1996) (citations omitted).

      In the instant case, Appellant argues that his plea was involuntary and

unknowing because plea counsel did not advise him that entering a guilty

plea would limit his appellate rights. Appellant’s Brief at 7. Specifically,

Appellant avers that had plea counsel informed him that his motion to

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suppress DNA evidence, which was denied prior to Appellant’s entering the

instant plea, could not be challenged on appeal, Appellant would have

proceeded to trial to preserve the issue. Id.; N.T., 1/11/2019, at 18-21. At

his PCRA hearing, Appellant testified, “When my lawyer motioned to

suppress that evidence, it was supposed to be suppressed. That’s my issue.

That’s an inadequate plea.” N.T., 1/11/2019, at 21. PCRA counsel elaborated

as to Appellant’s ineffective-assistance-of-counsel legal argument, “If he

didn’t understand that he could have appealed the ruling if he had gone to

trial and lost... He didn’t understand everything that was important, that

counsel was ineffective and that my client should be given the right to go to

trial.” Id. at 25.

      The PCRA Court found that Appellant’s testimony at the January 11,

2019 PCRA hearing was not credible and contradicted his testimony at the

guilty plea hearing. PCRA Court Opinion, 4/11/2019, at 3. Based on

Appellant’s oral and written plea colloquies and his admission of guilty at his

plea hearing, The PCRA Court determined that Appellant’s plea was knowing,

intelligent, and voluntary and that Appellant obtained “more than adequate

advice” from plea counsel. Id. at 3-4.

        Our review of the record reveals that there is no factual basis to

support Appellant’s claim that his plea was unknowing. Even if trial counsel

had not informed Appellant of his appellate rights, the omission would not

have resulted in an unknowing plea. The plea court specifically informed


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Appellant of his appellate rights regarding the denial of his motion to

suppress.

      [THE COURT:] We did litigate your suppression motion. When
      you plead guilty, you can’t challenge that on appeal. You have
      very limited appellate rights... The only other basis on appeal
      you have after you enter into a plea is if in fact your attorney
      was ineffective. Now, has your attorney prepared the case the
      way you’ve asked him to?

      [APPELLANT:] Yes.

N.T., 12/4/2014, at 157-58.

      Additionally, on direct appeal, this Court summarized how Appellant’s

written and oral plea colloquies demonstrated that his plea was knowing,

intelligent, and voluntary.

      “Appellant sua sponte requested to plead guilty (See N.T.,
      [12/4/2014], at 152). Appellant signed a four-page written plea
      colloquy in which he agreed that he was satisfied with the advice
      by, and representation of, counsel. (See Written Guilty Plea
      Colloquy, at 3). The trial court then engaged in a detailed oral
      plea colloquy, which covered [the minimum areas the trial court
      must inquire into]... Appellant stated that he was satisfied with
      counsel’s representation and was pleading guilty of his own free
      will.”

Brooking, 141 A.3d 588 (unpublished memorandum at 8-9). Based on the

foregoing, Appellant has failed to prove that trial counsel was ineffective,

and, as a result, that his plea was unknowing and involuntary.                See

Daniels, 963 A.2d at 419 (“A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.”).

      Accordingly, we conclude that the PCRA court did not err in dismissing

Appellant’s PCRA petition.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2020




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