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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

KEVIN W. TAYLOR,

                         Appellant                   No. 674 WDA 2015


                  Appeal from the PCRA Order April 6, 2015
            In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0008018-2012, CP-02-CR-0012644-
                                   2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 23, 2015

      Kevin W. Taylor (“Appellant”) appeals from the order denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      After stealing three vehicles within a twelve-month period, Appellant

pled guilty on March 4, 2013, at Criminal Docket Numbers 12644-2012 and

08018-2012 to two counts of theft by unlawful taking, 18 Pa.C.S. § 3921.

In exchange for the guilty plea, the Commonwealth withdrew two counts of

receiving stolen property, 18 Pa.C.S. § 3925.        The trial court revoked

Appellant’s bond but later reinstated it, and agreed to postpone sentencing

pending the preparation of a pre-sentence report.
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      Appellant failed to appear for sentencing.     The trial court issued a

bench warrant, and Appellant was eventually apprehended.                Appellant

appeared for sentencing on August 7, 2013.          Appellant requested that

counsel inform the trial court that he wanted to withdraw his plea. Counsel

declined but advised Appellant that he could make such a motion.           When

asked if he had anything to tell the trial court, Appellant responded that he

wanted to withdraw his plea.     The trial court denied the motion and then

sentenced Appellant to incarceration for an aggregate term of six and one-

half to thirteen years, followed by a fifteen-year term of probation.

      Appellant filed a counseled motion and amended motion to withdraw

his plea, and the Commonwealth filed a response. The motion to withdraw

was denied by operation of law on December 17, 2013.          Appellant filed a

notice of appeal on January 16, 2014, but discontinued the appeal on April

4, 2014.   Thereafter, Appellant filed a counseled PCRA petition on July 7,

2014, alleging plea counsel’s ineffectiveness.    The Commonwealth filed a

response, raising the illegality of Appellant’s sentence.   By order of court,

Appellant filed an amended PCRA petition.      The PCRA court conducted an

evidentiary hearing on November 19, 2014, at which Appellant and plea

counsel testified.   On April 6, 2015, the PCRA court denied Appellant’s

ineffectiveness claims but vacated and modified Appellant’s sentence,

imposing consecutive one-year probationary terms.           This timely appeal

followed. Appellant and the PCRA court have complied with Pa.R.A.P. 1925.


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       On appeal, Appellant presents the following questions for our review,

which we reproduce here verbatim:

       I    That the trial court erred in dismissing Appellants PCRA
            Petition by concluding that his earlier guilty plea was
            knowingly and voluntarily made and as such that his trial
            counsel was effective.

       II   That the trial court erred in dismissing Appellants PCRA
            Petition by concluding that trial counsel was effective
            despite failing to request that the Trial Court create a record
            of his request to withdraw his plea of guilty.

Appellant’s Brief at iv.1

       When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).                 We

grant great deference to the PCRA court’s findings that are supported in the

record and will not disturb them unless they have no support in the certified

record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

       To obtain collateral relief, a PCRA petitioner must establish by a

preponderance of the evidence that his conviction or sentence resulted from

____________________________________________


1
  We note that, in violation of Pa.R.A.P. 2119, Appellant purports to address
both issues in one argument. Appellant’s Brief at 6. In fact, however, his
argument focuses solely on the second issue, i.e., plea counsel’s
ineffectiveness in failing to create a record regarding Appellant’s request to
withdraw his guilty plea. Id. at 7–9. Thus, we conclude that Appellant has
abandoned his first issue.




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one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2).

Instantly, Appellant asserted in his PCRA petition ineffective assistance of

counsel (“IAC”) pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).

      The law presumes that counsel was effective.         Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015).          Hence, it is the petitioner’s

burden to prove the contrary. Commonwealth v. Koehler, 36 A.3d 121,

132 (Pa. 2012).     To plead and prove an IAC claim, a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to meet any one of these

prongs.    Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

Moreover, the PCRA court’s credibility determinations, when supported by

the record, are binding on this Court. Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011).

      Appellant argues that plea counsel was ineffective in failing to request

withdrawal of the plea and create a record regarding that request.

Appellant’s Brief at 7. Applying the three-prong IAC test, Appellant contends

that (1) his underlying claim has merit, i.e., “he had a right under the law to

argue and develop the record on the issue of withdrawing his guilty plea

prior to sentencing;” (2) counsel lacked a reasonable basis for not “at least


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advocat[ing] his client[’]s completely legitimate desire to withdraw a guilty

plea;” and (3) prejudice resulted because counsel’s ineffective assistance

“precluded [Appellant] from ever having claims of innocence heard on their

merits at the trial level and precluded him from perfecting a direct appeal

based on the denial of a motion to withdraw.” Id. at 7, 8, 9.

     The PCRA court thrice rejected Appellant’s argument as disingenuous

and meritless:

     During the time that I allowed for [a presentence report],
     [Appellant] gets a hot urine for cocaine, I mean so I think that
     he start[s] doing aggravating things during this window that I
     allowed for a pre-sentence report. He gets high and does other
     things which further contaminates the dynamic in this
     relationship. Then after he gets –– we have to issue a warrant
     for him to catch him, he comes to court, what appeared to me at
     that point would be a last ditch effort to further prolong the
     inevitable. And that I think was how I was understanding what
     was happening.

           [Plea counsel] has been practicing law here for thirty
     years. He is a very –– he goes to great lengths to be an
     advocate for his clients. If he tells me or I imagine his client
     that that’s a dead horse, you can’t come in after the sequence of
     events in this case and say I want to withdraw my plea, you
     can’t say for what reason, the reason you withdraw your plea is
     because I’m not guilty. But that wasn’t the issue, his guilt or
     not, he just didn’t want to –– he just didn’t want to face that
     that was the date that he was getting sentenced. And he, the
     way I interpreted it, was just trying to make a last ditch end run
     to get out of here.

N.T., 11/19/14, at 36–37.

           On November 19, 2014, a hearing was held. The [c]ourt
     heard from [Appellant] and [plea counsel]. [Appellant’s] version
     of events failed to persuade. His PCRA testimony was at odds
     with the sworn testimony he provided at the change of plea
     proceeding. That difference rarely does favors for the credibility

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      of a PCRA petitioner. [Appellant] does not fall into the exception
      camp.    While recognizing that negative, the [c]ourt is also
      influenced by the failure of [Appellant] to advance a fair and just
      reason for allowing his withdraw[al] of the plea immediately
      before sentencing. As said by his trial lawyer, the motion was
      not going to be made by him because “there is no basis for” it.
      Transcript, pg. 21. Undeterred by the advice of his lawyer,
      [Appellant] then made a pro se request to withdraw the plea.
      The [c]ourt denied it. Most importantly, at the PCRA hearing,
      [Appellant] did not advance any reason why his plea should have
      been allowed to be withdrawn. After some many months of
      thinking about this matter, one would think that a fair and just
      reason would have been advanced. Its absence is fatal to
      [Appellant’s] guilty plea based PCRA claim.

PCRA Court Opinion, 4/6/15, at 1–2 (emphasis in original).

      Trial counsel did not [render] ineffective assistance of counsel by
      failing to make a motion to withdraw [the] plea. At the hearing,
      trial counsel said the motion was not made because he did not
      feel there was a legal or factual basis for it. The [c]ourt agrees
      with that assessment.      As such, there is no merit to the
      underlying claim.

PCRA Court Opinion, 5/12/15, at 2.

      Upon review, we find support in the record for the PCRA court’s factual

and credibility determinations, and we discern no error in its legal

conclusion. Notably, Appellant did not assert any grounds for the withdrawal

of his plea before the sentencing court. N.T. Sentencing, 8/7/13, at 4. In

his   PCRA    petition,     Appellant   baldly   asserted   that   plea    counsel’s

ineffectiveness caused Appellant to enter an involuntary and unknowing plea

and resulted in the lack of a record regarding Appellant’s request to

withdraw his plea.        PCRA Petition, 8/27/14, at ¶ 15(A), (B).        Of course,

Appellant’s first assertion belies the admissions made at his plea colloquy.


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N.T. Guilty Plea, 3/4/13, at 3–7.     Appellant is bound by those statements

and cannot now be heard to assert grounds for withdrawing the plea which

contradict them. See Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.

Super. 2003) (“A person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.”) (citation omitted).

      As for Appellant’s second assertion, plea counsel explained why he did

not request withdrawal of the plea: “[T]here wasn’t any basis to withdraw it.

[Appellant] made a knowing, voluntary and intelligent decision to plead

guilty with my advice and my counsel, and I don’t file frivolous motions. It

just wasn’t there. I knew the Judge wasn’t happy with [Appellant], but that

really wasn’t my concern.”     N.T., 11/9/14, at 22.   The PCRA court agreed

with plea counsel’s assessment. PCRA Court Opinion, 5/12/15, at 2. Thus,

we conclude that plea counsel had a rational basis for refusing to request

withdrawal of the plea. Appellant’s contrary argument fails.

      Because Appellant failed to establish by a preponderance of the

evidence that plea counsel was ineffective, Appellant was not entitled to

collateral relief.   Accordingly, we affirm the PCRA court’s order dismissing

Appellant’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2015




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