J-S20038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL SCOTT CROASMUN,

                            Appellant                No. 1410 WDA 2015


                 Appeal from the PCRA Order August 26, 2015
               in the Court of Common Pleas of Jefferson County
               Criminal Division at No.: CP-33-CR-0000401-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED MARCH 21, 2016

        Appellant, Michael Scott Croasmun, appeals from the order dismissing

his counseled first petition filed pursuant to the Post Conviction Relief Act

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

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

On January 16, 2013, Appellant entered a negotiated guilty plea to one

count each of involuntary deviate sexual intercourse with a child and

aggravated indecent assault of a child.1 The charges stem from his sexual

abuse of his then-girlfriend’s daughter.       In exchange for the plea, the

Commonwealth nolle prossed 249 related counts against him. On May 28,

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3123(b) and 3125(b), respectively.
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2013, after consideration of a pre-sentence investigation report (PSI), the

trial court sentenced Appellant, in accordance with the plea agreement, to

an aggregate term of not less than ten nor more than thirty years’

incarceration.    The court also designated Appellant a sexually violent

predator (SVP).    Appellant did not file a post-sentence motion or direct

appeal.

      On May 21, 2014, Appellant, acting pro se, filed a timely PCRA petition

raising numerous claims of ineffective assistance of plea counsel. The PCRA

court appointed counsel, and held an evidentiary hearing on August 6, 2015,

at which plea counsel Kenneth A. Young, Esq. and Appellant testified.

Appellant introduced into evidence a letter Attorney Young wrote to him

dated May 1, 2013 (after Appellant entered the guilty plea, but before the

court imposed sentence). The letter reads, in pertinent part, as follows:

      . . . I am sorry that you are concerned regarding the Megan’s
      Law implication regarding your case. You informed me that you
      would accept the plea and knowingly and intentionally pled guilty
      to this matter with the negotiation of a 10 to 30 year sentence.
      Pursuant to conversations with you and my partner, . . . it was
      our global agreement that this case was un-defendable due to
      the severity of the charges, your submissions to both [my
      partner] and myself, the severity of the crimes charged, the
      mandatory minimums involved and the fact that the [c]ourt
      would sentence you to consecutive mandatory minimums if you
      were found guilty in this matter.

            If you desire to withdraw your plea, I will of course
      prepare the necessary documentation, but, I would also have to
      withdraw as counsel in this matter.      I don’t believe any
      additional money would assist you in this terrible situation. I
      have tried thousands of cases in this Commonwealth and
      professionally evaluated your case with my colleagues and

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J-S20038-16


       yourself and we all believe that we would be unsuccessful
       obtaining a not guilty verdict in this matter.

             Please immediately contact me by correspondence as soon
       as possible with your position in this matter. I again stress that
       this was the best negotiated sentence that could have been
       achieved due to the facts and severity of charges against you.

(Letter from Kenneth A. Young, Esq. to Appellant, 5/01/13, at unnumbered

pages 1-2).2

       On August 26, 2015, the court entered an opinion and order denying

Appellant’s PCRA petition. This timely appeal followed.3

       Appellant raises one issue for our review:

       Did the [PCRA] court err in its August 26, 2015, opinion and
       order, which denied [Appellant’s] PCRA claim that [Appellant]
       was rendered ineffective assistance of counsel by being
       pressured, coerced, and unlawfully induced by his trial attorney,
       under threat of abandonment, to plead guilty pursuant to the
       plea agreement rather than go to trial?

(Appellant’s Brief, at 4).4




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2
  Appellant did not respond to the letter.          (See PCRA Court Opinion,
8/26/15, at 4).
3
  Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on September 24, 2015. The
court entered an opinion on September 25, 2015, in which it referred this
Court to its previous opinion filed August 26, 2015 for its reasons for
denying the PCRA petition. See Pa.R.A.P. 1925.
4
  The Commonwealth did not file a brief; it filed a letter stating that it is
relying on the PCRA court’s Rule 1925(a) opinion. (See Commonwealth’s
letter, 11/23/15).



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      In his issue on appeal, Appellant argues that counsel provided

ineffective assistance by coercing and pressuring him into proceeding with

the guilty plea instead of a trial.       (See id. at 13-18).        He asserts that

counsel threatened to abandon him if he withdrew the plea, and in support,

points to counsel’s May 1, 2013 letter. (See id. at 14, 16-17). Appellant

further maintains that counsel’s actions rendered his plea involuntary and

requests that this Court remand his case for trial. (See id. at 17-18). This

issue does not merit relief.

            We begin by noting our well-settled standard of review. In
      reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free
      of legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level. It is
      well-settled that a PCRA court’s credibility determinations are
      binding upon an appellate court so long as they are supported by
      the record. However, this Court reviews the PCRA court’s legal
      conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

      To prevail on a petition for PCRA relief on grounds of ineffective

assistance   of   counsel,     a   petitioner   must   plead   and    prove,   by   a

preponderance of the evidence:

      (2) That the conviction or sentence resulted from . . . :

                                    *    *      *
      (ii) 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.

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42 Pa.C.S.A. § 9543(a)(2)(ii).

       An appellant must demonstrate “(1) that the underlying claim is of

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

her action or inaction; and (3) that, but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”        Commonwealth v. McDermitt,

66 A.3d 810, 813 (Pa. Super. 2013) (citation omitted).           “The failure to

satisfy any prong of this test will cause the entire claim to fail.” Id. (citation

omitted). “It is well-established that counsel is presumed effective, and [a

PCRA     petitioner]   bears   the    burden    of   proving    ineffectiveness.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-80 (Pa. Super.

2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015) (citations

omitted).

                    It is clear that a criminal defendant’s right to
             effective counsel extends to the plea process, as well
             as during trial.          However, [a]llegations 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 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.

             [T]he law does not require that [the defendant] be pleased
       with the outcome of his decision to enter a plea of guilty: All that
       is required is that [his] decision to plead guilty be knowingly,
       voluntarily, and intelligently made. Moreover, with regard to the
       prejudice prong, where an appellant has entered a guilty plea,
       the appellant must demonstrate it is reasonably probable that,

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        but for counsel’s errors, he would not have pleaded guilty and
        would have gone to trial.

Commonwealth v. Timchak, 69 A.3d 765, 769-70 (Pa. Super. 2013)

(citations and quotation marks omitted).

        Here, during Appellant’s oral guilty plea colloquy, the court informed

him of the elements of the charges against him, and Appellant affirmatively

stated that he was guilty of the charges. (See N.T. Guilty Plea, 1/16/13, at

7-8).    Additionally, Appellant affirmatively indicated, inter alia, that he

understood the plea agreement and that he was waiving his right to a jury

trial. (See id. at 4-5).

        At the sentencing hearing, the court acknowledged that Appellant

made certain statements during his interview for the PSI indicating that he

was not guilty. (See N.T. Sentencing, 5/28/13, at 4; PSI, 5/28/13, at 2).

The court reiterated that Appellant had the right to a trial, and stated that it

could permit him to withdraw his plea. (See N.T. Sentencing, at 4-5). It

advised Appellant that this was his “last chance to say, ‘I’m not guilty; I

don’t want to take the plea[.]’” (Id. at 4). Appellant declined to withdraw

the plea, stated that he did not need additional time to consider this

decision, and indicated that he made it “of [his] own free will[.]” (Id. at 7;

see id. at 5-6).

        During the PCRA hearing, Appellant testified regarding Attorney

Young’s May 1, 2013 letter, and indicated that he felt “abandoned” and

“defenseless” after receiving it. (N.T. PCRA Hearing, 8/06/15, at 50; see id.

at 10). He believed Attorney Young pressured him to enter the plea because

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“it felt like he was saying you need to take this [plea] or else[.]”    (Id. at

48).

        In contrast, Attorney Young testified that, although he initially

prepared to mount an aggressive defense for Appellant, after evaluating the

evidence, he concluded that the Commonwealth’s case was “extremely

overwhelming,” and essentially indefensible. (Id. at 27; see id. at 18, 26,

42-43).    The victim, her mother, and her step-brother were prepared to

testify against Appellant, and the Commonwealth also planned to present

evidence of other sexual abuse allegations against Appellant by his niece.5

(See id. at 16, 42; PCRA Ct. Op., at 1). Additionally, if Attorney Young tried

the case, his defense strategy was limited because Appellant had admitted

sexual contact with the victim to him. (See N.T. PCRA Hearing, at 17, 41-

42). He advised Appellant that he could seek different representation if he

wished. (See id. at 42).

        Attorney Young further testified that Appellant authorized him to

pursue a plea agreement after they discussed the strong evidence against

him and the possibility that the court would sentence him to what was, in

effect, a life sentence.      (See id. at 16, 19).   Attorney Young stated that

Appellant was satisfied with the plea and that he “definitely never pressured

[Appellant] to take the plea. If [Appellant] wanted a trial, [he] would have


____________________________________________


5
    See Pa.R.E. 404(b).



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tried it, but in [his] professional opinion, this was a very fair and reasonable

negotiated plea.” (Id. at 19; see id. at 20, 22, 43). He testified that he did

not abandon Appellant and that, on the day of sentencing, Appellant

reiterated that he wanted to move forward with sentencing pursuant to the

plea. (See id. at 43-44).

      After review of the record, we agree with the PCRA court that

Appellant is not entitled to relief on his ineffective assistance of counsel

claim.   Despite his assertions to the contrary, the record does not reflect

that counsel coerced Appellant into entering an involuntary guilty plea.

Rather, it supports the PCRA court’s determination that counsel made a

realistic assessment of Appellant’s likelihood of conviction at a trial and the

resultant lengthy sentence, and recommended that Appellant instead enter

what he considered, based on his extensive experience, a favorable plea.

(See PCRA Ct. Op., at 6-7). While counsel candidly advised, in light of the

Commonwealth’s      “overwhelming”     evidence   and   his   limited   defense

strategies, that he would file a motion to withdraw from representation if

Appellant withdrew the plea, he did not suggest that Appellant could not

proceed with alternate representation.

      Moreover, Appellant made statements under oath at the guilty plea

colloquy and sentencing hearing indicating he was guilty of the charges and

that he made the decision to plead guilty of his own free will; “[he] is bound

by these statements, and he may not now assert grounds for withdrawing




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the plea which contradict the statements.” Timchak, supra at 774 (citation

omitted).

      In sum, we conclude that Appellant’s underlying claim that his plea

was involuntary lacks arguable merit. See id.; McDermitt, supra at 813.

Accordingly, his sole issue on appeal does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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