J-S50043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ALAN JAMES WATKINS,

                        Appellant                   No. 505 WDA 2014


           Appeal from the PCRA Order entered March 24, 2014,
            in the Court of Common Pleas of Crawford County,
           Criminal Division, at No(s): CP-20-CR-0000919-2011


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

MEMORANDUM BY ALLEN, J.:                          FILED AUGUST 11, 2014



his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. sections 9541-46. We affirm.

      The pertinent facts and procedural history are as follows:           On

September 20, 2011, police arrested Appellant, along with three other

individuals, and charged them with second-degree murder, robbery, and

related crimes as a result of the shooting death of the victim. Ultimately,

Appellant entered a guilty plea to third-degree murder on November 15,

2012. All of the remaining charges were withdrawn. Pursuant to the plea



Commonwealth agreed not to seek the maximum sentence of twenty to forty

years of incarceration. At sentencing, the Commonwealth recommended a
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sentence of nineteen to thirty-eight years of imprisonment.        After hearing

from various witnesses, Appellant, and defense counsel, the trial court

imposed a sentence of nineteen to forty years of imprisonment.          The trial



Appellant did not file an appeal to this Court.

      On September 24, 2013, Appellant filed a pro se PCRA motion. The

PCRA court appointed counsel. On January 2, 2014, PCRA counsel filed an

amended    PCRA    petition.     Within   this    amended   petition,   Appellant

emphasized that he was neither claiming his innocence nor attempting to

withdraw his guilty plea. Instead, Appellant opined that the Commonwealth

breached the plea agreement by not recommending a minimum sentence

significantly less than nineteen years.       On February 27, 2014, the PCRA

court issued Pa.R.Crim.P. 907 of its intent to dismis

without a hearing.    Appellant did not file a response.     By Order entered



This timely appeal followed.      Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         Whether the [PCRA] court erred in not granting [Appellant

         sentencing order and then re-sentencing him to a
         minimum incarceration term that is significantly less than
         the minimum incarceration term that has been imposed?




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whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.         Commonwealth v. Reaves, 923 A.2d



unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing if it determines that a



either the record or from other evidence. Commonwealth v. Jordan, 772

A.2d 1011, 1014 (Pa. Super. 2001).

       The PCRA court first determined that, to the extent Appellant seeks a

modification of his sentence, he failed to raise a cognizable claim under the

PCRA. See Pa.R.Crim.P. Notice, 2/27/14, at 2.1 We agree.

       The defendant in Commonwealth v. Laszczynski, 715 A.2d 1185

(Pa. Super. 1998) raised a similar claim relative to his guilty plea.     In



          [The appellant] does not question the reliability of the
          manner in which his guilt was determined. He admitted
          his guilt by entering the nolo contendere plea.     [The
          appellant] simply is making contentions relating to

____________________________________________


1
  In lieu of a Pa.R.A.P. 1925(a) opinion, the PCRA court referenced its
Pa.R.Crim.P. 907 notice as responding to the issue Appellant raised in his
Pa.R.A.P. 1925(b) statement.




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        unlawful inducement regarding sentencing considerations,
        and he seeks to withdraw his plea.

           Thus, it is clear that [eligibility for relief based upon the
        ineffective assistance of counsel] is not the proper section
        for determining the cognizability of his claim. Rather, we
        must analyze his claim under [section 9543](a)(ii), which
        applies specifically to pleas of guilty and claims of unlawful
        inducement in connection with a plea of guilt.

           The statutory language in 42 Pa.C.S. § 9543(a)(2)(iii)
        provides that in order to be eligible for PCRA relief, the


        circumstances make it likely that the inducement caused
        the petitioner to plead guilty and the petitioner is
        innocent.

                                                             nolo
        contendere plea was unlawfully induced and that the
        inducement caused him to enter that plea, [the appellant]
        does not allege that he is innocent.      None of [the

        instead, concern sentencing issues that have no connection
        to guilt or innocence. Thus, it is clear that his claim is not
        cognizable.

Laszczynski, 715 A.2d at 1187 (citations omitted).

     As noted above, within his amended PCRA petition, Appellant asserted

that he was not innocent and did not wish to withdraw his guilty plea. In

addition, he raised no allegations that trial counsel was ineffective.     Thus,



                           -conviction relief on this basis alone.

     Even if cognizable, the PCRA court further determined that the record



breached its plea agreement. The PCRA court explained:



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           [T]he record is very clear that the plea agreement was
        spelled out specifically for [Appellant] at the plea colloquy
        and it was in fact followed by the Commonwealth at the
        time of sentencing.

           Specifically, as we have indicated, and more specifically
        indicate, there is a plea agreement form signed by
        [Appellant], his counsel and the District Attorney indicating
        that the Commonwealth will not seek the mandatory
        sentence of twenty to forty years and there is no further
        agreement.

            At the time of the plea colloquy the District Attorney
        addressed this issue specifically with [Appellant], even to
        the extent that he indicated that the plea agreement
        allowed him to seek a sentence one day less than twenty
        years to one day less [than] forty years without violating
        the plea agreement and [Appellant] indicated that he
        understood that. [N.T., 11/15/12, at 55-56].

           Further, this Court clearly told [Appellant] that [the
        court] was not bound by the plea agreement and we were
        not promising him what his sentence would be. Again,
        [Appellant] indicated that he understood that. [Id. at 56].

           We note that it has long been the law of this
        Commonwealth that a [defendant] under oath cannot later
        contradict the statements he made at the time he enters
        his guilty plea and thus is bound by those statements.
        [Commonwealth v. Yeomans], 24 A.3d 1044 (Pa.
        Super. 2011).

           At the time of sentencing the District Attorney in fact
        indicated that he was suggesting a sentence of nineteen to
        thirty-eight years, which was clearly within the plea
        agreement that the parties had reached. [N.T., 11/19/12,
        at 39-41].

Pa.R.Crim.P. 907 Notice, 2/27/14, at 2-3.

     As concluded by the PCRA court, the Commonwealth simply did not




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Appellant knowingly furnished the gun with which the victim was killed, and

should have known better because Appellant was on probation at the time.

See N.T., 11/19/12, at 42-43. In explaining its reasons for the nineteen to

forty-




                                                                          Id. at 43-44.

                                           -conviction   relief   is     not    that    the



information [he] supplied the Commonwealth with was worthy of a minimum




sentence      is   not   a   basis   for   post-conviction     relief.         See,    e.g.,

Commonwealth v. Gonzalez, 608 A.2d 528, 533 (Pa. Super. 1992)



sentence did not establish a cognizable basis for post-conviction relief).

                                           g claim vis-à-vis his guilty plea is non-

cognizable under the PCRA, and nevertheless refuted by the record.                      We

                                                             -conviction relief.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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