J-S09003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EVANS PARKS                                :
                                               :
                       Appellant               :   No. 1172 EDA 2019

              Appeal from the PCRA Order Entered April 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003280-2016


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 12, 2020

        Appellant, Evans Parks, appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

In addition, counsel for Appellant has filed a petition to withdraw and a no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).1 After review, we grant counsel’s petition to withdraw and affirm the

order of the PCRA court.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Counsel filed a brief entitled, “Turner/Finley/Anders Brief.” A brief filed
pursuant to Anders v. California, 386 U.S. 738 (1967), is proper where
counsel seeks to withdraw representation in a direct appeal. This matter,
however, involves an application to withdraw on collateral review. Therefore,
J-S09003-20


       In its opinion, the PCRA court set forth the relevant facts and procedural

history of this matter as follows:

              On February 29, 2016, [Appellant] was arrested and
       charged with Attempt[ed] Murder and related offenses. On
       August 2, 2017, [Appellant] appeared before this [c]ourt and
       entered into a negotiated guilty plea to Attempt[ed] Murder and
       Possession of a Firearm by Persons Prohibited (“VUFA 6105”).1 On
       that same date, after [Appellant] waived his right to a presentence
       investigation and mental health reports, this [c]ourt imposed the
       negotiated sentence of six and one-half to fifteen years of
       imprisonment for Attempt[ed] Murder and a concurrent sentence
       of five to ten years of imprisonment for VUFA 6105, for a total
       sentence of six and one-half years to fifteen years of
       imprisonment. [Appellant] did not file a post-sentence motion or
       a Notice of Appeal.

              1   The remaining charges were nolle prossed.

             On May 18, 2018, [Appellant] filed a timely pro se Post-
       Conviction Relief Act (“PCRA”) petition. On September 6, 2018,
       appointed PCRA counsel filed a no-merit letter pursuant to
       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and a
       Motion to Withdraw.        On September 13, 2018, after an
       independent review, this [c]ourt agreed that the instant petition
       was meritless and issued a Notice of Intent to Dismiss pursuant
       to Pa.R.Crim.P. 907. On October 1, 2018, [Appellant] filed a pro
       se Response to this [c]ourt’s 907 [notice] and on October 14,
       2018, counsel filed an Amended Petition. On April 15, 2019, after
       this [c]ourt conducted an evidentiary hearing, this [c]ourt
       dismissed the instant petition. On April 23, 2019, [Appellant] filed
       a timely Notice of Appeal.



____________________________________________


a Turner/Finley no-merit letter is the appropriate filing. Turner, 544 A.2d
927; Finley, 550 A.2d 213. This Court has held that “[b]ecause an Anders
brief provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.”         Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted).
Nevertheless, because Turner, Finley, and their progeny provide the proper
means of review, we refer to counsel’s brief as a Turner/Finley brief.

                                           -2-
J-S09003-20


PCRA Court Opinion, 6/19/19, at 1-2. As noted, counsel has filed a brief on

Appellant’s behalf, and counsel’s petition to withdraw remains outstanding.

     Prior to addressing the merits of the issues on appeal, we must first

decide whether counsel has fulfilled the procedural requirements for

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa. Super. 2008). This Court has listed conditions counsel must satisfy

when seeking to withdraw in a collateral appeal:

            Counsel petitioning to withdraw from PCRA representation
     must proceed ... under Turner, supra and Finley, supra and ...
     must review the case zealously. Turner/Finley counsel must
     then submit a “no-merit” letter to the trial court, or brief on appeal
     to this Court, detailing the nature and extent of counsel’s diligent
     review of the case, listing the issues which petitioner wants to
     have reviewed, explaining why and how those issues lack merit,
     and requesting permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy of the
     “no merit” letter/brief; (2) a copy of counsel’s petition to
     withdraw; and (3) a statement advising petitioner of the right to
     proceed pro se or by new counsel.

                                     ***

             [W]here counsel submits a petition and no-merit letter that
     ... satisfy the technical demands of Turner/Finley, the [court in
     which the application was filed, meaning the trial court or the
     appellate court] must then conduct its own review of the merits
     of the case. If the court agrees with counsel that the claims are
     without merit, the court will permit counsel to withdraw and deny
     relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).




                                     -3-
J-S09003-20


        In the application filed with this Court, Attorney Server explained he

reviewed the case, evaluated the issues, conducted an independent review of

the record, and concluded there were no issues of merit. Counsel listed issues

Appellant sought to raise and explained why the appeal is without merit. In

addition, counsel asserted that he served upon Appellant a copy of the

application to withdraw, the brief, and a letter addressed to Appellant

accompanying those documents. Thus, we will allow counsel to withdraw if,

after our independent review, we conclude that the claim relevant to this

appeal lacks merit.       Accordingly, we next review the issues raised in the

Turner/Finley brief.

        In the Turner/Finley brief, counsel set forth the issues Appellant

wanted to raise on appeal, which counsel concludes are meritless, as follows:

              I.   Whether trial counsel was ineffective for (a) unlawfully
        inducing the Appellant to enter a guilty plea, (b) failing to
        withdraw the guilty plea as requested and (c) failing to file an
        appeal?

              II.   Whether the Appellant’s guilty plea was a knowing and
        voluntary plea?

              III. Whether      the    Appellant    is   entitled under
        COMMONWEALTH V. LANTZY, 736 A.2d 564 (PA. 1999) to the
        reinstatement of his appellate rights nunc pro tunc?

Turner/Finley Brief at 6.2




____________________________________________


2   We have reordered the issues for ease of disposition.

                                           -4-
J-S09003-20


      In addition, after PCRA counsel filed his Turner/Finley brief and petition

to withdraw as counsel, Appellant filed a pro se response and objection to the

Turner/Finley brief and counsel’s petition. In Appellant’s pro se response,

he raises the following issues, which we present here verbatim:

      I. Whether the trial courts imposition of cost and crime victims
      compensation fund victim/witness services fund illegal insofar as
      it did not comply with the terms of the negotiated plea agreement
      and trial counsel ineffectively failed to raise this in a motion to
      withdraw the plea or raise this issue on direct appeal and PCRA
      counsel’s ineffectively omitted trial counsel’s ineffectiveness in
      amended PCRA petitions?

      II- Whether the plea was entered with a full understanding of the
      consequences thereof when Appellant was not advised that the
      sentencing court could impose consecutive sentences rather than
      concurrent sentences and trial counsel ineffectively failed to raise
      this issue in a motion to withdraw the plea or raise this claim on
      direct appeal and PCRA counsel’s ineffectively omitted trial
      counsel’s ineffectiveness in amended PCRA petitions?

      III. Whether Appellant’s guilty plea was the invalid consequence
      of the trial courts active participation in plea negotiations and trial
      counsel ineffectively failed to raise this issue in a motion to
      withdraw the plea or raise this issue on direct appeal and PCRA
      counsel’s ineffectively omitted this claim in amended PCRA
      petition.

      IV. Whether Appellant received ineffective assistance of court-
      appointed PCRA counsel, to the extent his PCRA counsel failed to
      raise, present and preserve the issues presently before this Court
      in an amended PCRA petition.

Appellant’s pro se response to Turner/Finley Brief at 2-3.

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

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.


                                       -5-
J-S09003-20


2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).   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). A PCRA court’s credibility findings are to be accorded great

deference.    Commonwealth v. Dennis, 17 A.3d 297, 305 (Pa. 2011)

(citation omitted). “Where the record supports the PCRA court’s credibility

determinations, such determinations are binding on a reviewing court.” Id.

(citation omitted).

      We begin with the issues raised in counsel’s Turner/Finley brief. The

first issue addresses claims of trial counsel’s alleged ineffectiveness in three

instances: ineffectiveness for a) unlawfully inducing the Appellant to enter a

guilty plea; b) failing to withdraw the guilty plea as requested; and c) failing

to file an appeal.    Turner/Finley Brief at 6. In order to plead and prove

ineffective assistance of counsel, 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). Counsel is presumed to have rendered effective

assistance of counsel. Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa.


                                     -6-
J-S09003-20


2015). We have explained that trial counsel cannot be deemed ineffective for

failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125,

132 (Pa. Super. 2003) (en banc). “We need not analyze the prongs of an

ineffectiveness claim in any particular order. Rather, we may discuss first any

prong that an appellant cannot satisfy under the prevailing law and the

applicable facts and circumstances of the case.”             Commonwealth v.

Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v.

Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

      Moreover, ineffective assistance of counsel claims in connection with the

entry of a guilty plea serve as a basis for relief only if the ineffectiveness

caused   the   defendant    to   enter   an    involuntary   or   unknowing   plea.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). “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.”              Id. (citation and

quotation marks omitted).

      We have reviewed the briefs of the parties, the certified record before

us on appeal, and the PCRA court opinion filed pursuant to Pa.R.A.P. 1925(a)

on June 19, 2019. We conclude that the PCRA court’s opinion thoroughly and

accurately addressed and disposed of Appellant’s ineffective assistance of

counsel issues. Specifically, the PCRA court properly concluded that there was

no merit to the underlying claims alleged to give rise to the ineffectiveness


                                         -7-
J-S09003-20


assertions. PCRA Court Opinion, 6/19/19, at 5-11. Consequently, we discern

no error in the PCRA court’s order dismissing Appellant’s petition. We affirm

the PCRA court’s decision on this issue on the basis of the PCRA court’s opinion

and adopt its analysis as our own.

      The second issue raised in the Turner/Finley brief asserts that

Appellant’s guilty plea was not knowing and voluntary. Turner/Finley Brief

at 18-22.    As noted above, the PCRA court addressed this issue in its

discussion of Appellant’s claims that counsel was ineffective for unlawfully

inducing Appellant to enter a guilty plea. Specifically, the PCRA court stated,

in relevant part, as follows:

             The record reflects that [Appellant] entered into a knowing,
      intelligent, and voluntary guilty plea. [Appellant] reviewed and
      signed a written guilty plea colloquy form which indicated that he
      understood the nature of the charges he pled guilty to, the factual
      basis for his plea, his right to a jury trial, the presumption of
      innocence, and the permissible range of sentences. By signing
      the colloquy form, [Appellant] indicated that he wished to enter
      his plea on his own volition and willingly gave up defenses to the
      charges and the vast majority of his appellate rights.

            This [c]ourt supplemented [Appellant’s] written colloquy
      form with an extensive oral colloquy, during which this [c]ourt
      confirmed that [Appellant] received his high school diploma, could
      read, write, and understand the English language, had never been
      treated for a mental illness, and was not under the influence of
      drugs or alcohol. This [c]ourt further verified that [Appellant]
      understood that he was giving up all of his rights to trial. This
      [c]ourt described the elements and maximum penalties of each
      crime to [Appellant] and reminded him that he was presumed to
      be innocent and that this [c]ourt was imposing a sentence that
      [Appellant] himself requested. This [c]ourt also discussed at
      length with [Appellant] the secondary effects of his plea, including
      the possibility that he would serve back time for a previous case
      because he was on State Parole when he committed the instant

                                     -8-
J-S09003-20


     offense. Armed with this information, [Appellant] decided to
     accept the Commonwealth’s negotiated plea. After this [c]ourt
     heard a summary of the facts and determined that the
     Commonwealth had sufficient evidence to prove [Appellant]
     guilty, it accepted his plea based on [Appellant’s] tremendous
     family support, his age, and his acceptance of responsibility.

            Trial counsel’s recommendation to plead guilty was sound,
     as the instant plea avoided exposure to significant jail time.
     [Appellant] was sentenced under the applicable sentencing
     guidelines in place at the time of the offense in 2015, which is the
     Seventh Edition, Amendment 2. See Pennsylvania Sentencing
     Guidelines, 204 Pa. Code §§ 303.1-303.14 (2014). With his prior
     record score of five, the standard range of sentences for
     Attempt[ed] Murder (OGS 14) is 210 months to the statutory limit
     of 240 months when the deadly weapon enhancement is applied;
     the standard range for Aggravated Assault (OGS 11) is seventy
     two to ninety months (this charge merged with Attempt Murder);
     the standard range for VUFA 6105 (OGS 10) has a standard range
     of sixty to seventy two months, and the standard range for PIC
     (OGS 4) is nine to sixteen months, for a total maximum sentence
     of thirty to sixty years imprisonment. By electing to plead guilty
     to Attempt Murder and VUFA 6105, which carried a maximum
     combined sentence of twenty-two and one-half to forty-five years
     imprisonment, [Appellant] limited his maximum exposure to
     imprisonment by thirty years. When it accepted the negotiated
     guilty plea, this [c]ourt acknowledged the significant deviation
     below the guideline range in [Appellant’s] sentence.

            Nothing on the record indicates that [Appellant] was misled
     by trial counsel. This [c]ourt advised [Appellant] that he did not
     need to plead guilty and could take his case to trial. Further, this
     [c]ourt gave [Appellant] an opportunity to speak with his wife
     prior to entering into the plea so he could make a decision that
     was in his best interest. In addition, [Appellant] was counseled
     by his competent defense attorney and thoroughly discussed the
     various options available to him before making his decision to
     plead guilty, as well as the option to plead nolo contendere. This
     [c]ourt confirmed with [Appellant] that it was his decision to plead
     guilty, not the decision of his wife or his attorney. Accordingly,
     there is no evidence supporting [Appellant’s] claim that he was
     coerced into pleading guilty.

PCRA Court Opinion, 6/19/19, at 6-8.

                                    -9-
J-S09003-20



      We agree with the PCRA court’s conclusion that Appellant’s guilty plea

was voluntarily and knowingly entered. Appellant is entitled to no relief on

this claim.

      In the next issue raised in the Turner/Finley brief, Appellant maintains

that he is entitled to reinstatement of his appellate rights nunc pro tunc under

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Turner/Finley Brief

at 22-29. We note that our Supreme Court has stated the following regarding

the duty attorneys owe to their clients in the appellate context:

      [W]here there is an unjustified failure to file a requested direct
      appeal, the conduct of counsel falls beneath the range of
      competence demanded of attorneys in criminal cases, denies the
      accused the assistance of counsel guaranteed by the Sixth
      Amendment to the United States Constitution and Article I,
      Section 9 of the Pennsylvania Constitution, as well as the right to
      direct appeal under Article V, Section 9 ....

Lantzy, 736 A.2d at 572 (footnotes omitted).        “It is well-settled that an

accused who is deprived entirely of his right of direct appeal by counsel’s

failure to perfect an appeal is per se without the effective assistance of

counsel, and is entitled to reinstatement of his direct appellate rights.”

Commonwealth v. Grosella, 902 A.2d 1290, 1293 (Pa. Super. 2006)

(internal citation and emphasis omitted).

      As noted above, the PCRA court concluded that trial counsel was not

ineffective for failing to file an appeal. PCRA Court Opinion, 6/19/19, at 10-

12. The record supports that conclusion, and we agree with the PCRA court’s




                                     - 10 -
J-S09003-20


determination.    As such, Appellant is not entitled to reinstatement of his

appellate rights, nunc pro tunc, under Lantzy.

      We now examine the issues raised by Appellant in his pro se response

to counsel’s Turner/Finley brief.     In his first issue, Appellant asserts that

imposition of trial costs and payment to the crime victims’ compensation fund

was illegal as it did not comply with the terms of the negotiated plea

agreement, and trial counsel was ineffective for failing to raise this issue. Pro

Se Response, 11/19/19, at 2, 7-8.        Appellant, however, did not raise this

challenge before the PCRA court. As a result, Appellant may not do so for the

first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”). Thus,

we conclude that this issue is waived.

      Moreover, despite Appellant’s assertion, this issue does not go to the

legality of his sentence. Instead, it challenges the voluntariness of his plea.

As noted, Appellant did not file a timely motion to withdraw his plea, and we

have concluded that Appellant voluntarily and knowingly entered his plea. As

such, Appellant is entitled to no relief on this claim.

      In his second and third issues, Appellant challenges the validity of his

guilty plea. For the reasons outlined by the PCRA court and restated in part

above, Appellant has failed to establish that his guilty plea was not voluntary

and knowing. Appellant is entitled to no relief on these claims.




                                      - 11 -
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      In his final issue, Appellant asserts that he received ineffective

assistance of PCRA counsel “to the extent his PCRA counsel failed to raise,

present and preserve the issues presently before this Court in an amended

PCRA petition.” Appellant’s Pro Se response, 11/19/19, at 3, 13-22. Herein,

appointed PCRA counsel filed an amended PCRA petition on Appellant’s behalf

on October 14, 2018.     In that amended PCRA petition, counsel presented

Appellant’s challenges and indicated that counsel intended to file a

Turner/Finley brief due to the fact that he believed Appellant’s claims to lack

merit. Amended PCRA Petition, 10/14/18, at 1-3.

      We note the following with regard to Appellant’s claims of PCRA

counsel’s ineffectiveness:

      Where the defendant asserts a layered ineffectiveness claim he
      must properly argue each prong of the three-prong ineffectiveness
      test for each separate attorney.

             Layered claims of ineffectiveness are not wholly distinct
      from the underlying claims[,] because proof of the underlying
      claim is an essential element of the derivative ineffectiveness
      claim[.] In determining a layered claim of ineffectiveness, the
      critical inquiry is whether the first attorney that the defendant
      asserts was ineffective did, in fact, render ineffective assistance
      of counsel. If that attorney was effective, then subsequent
      counsel cannot be deemed ineffective for failing to raise the
      underlying issue.

Rykard, 55 A.3d at 1190 (internal citations and quotation marks omitted.).

      As noted, the claims of trial counsel ineffectiveness raised by Appellant

lacked merit. Accordingly, there can be no finding of ineffectiveness of PCRA

counsel for failing to file a claim of trial counsel ineffectiveness that lacks


                                    - 12 -
J-S09003-20


merit. Rykard, 55 A.3d at 1190. Appellant is not entitled to relief on this

claim.

       For the reasons set forth above, we conclude that Appellant is entitled

to no relief. The record supports the PCRA court’s credibility determinations,

and we agree with counsel that Appellant’s claims lack merit.       Moreover,

having conducted an independent review of the record in light of the PCRA

petition, as well as the contents of counsel’s petition to withdraw and brief,

we agree that the PCRA petition is meritless and permit counsel to withdraw.

Daniels, 947 A.2d at 798.3

       Petition to withdraw as counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




____________________________________________


3The parties are directed to attach a copy of the PCRA court’s June 19, 2019,
opinion in the event of further proceedings in this matter.

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,.                                 IN THE COURT OF COMMON PLEAS
                              FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                       CRIMINAL TRIAL DIVISION

     COMMONWEALTH OF PENNSYLVANIA                               CP-51-CR-0003280-2016



                V.


                                                                                                                        r
     EVANS PARKS                                                                                                        rn
                                                                                                                         0
                                                     OPINION
     McDermott, J.

     Procedural History

                On February 29, 2016, the Petitioner, Evans Parks, was arrested and charged with

     Attempt Murder and related offenses. On August 2, 2017, the Petitioner appeared before this

     Court and entered into a negotiated guilty plea to Attempt Murder and Possession of a Firearm

     by Persons Prohibited ("VUFA 6105").1 On that same date, after the Petitioner waived his right

     to a presentence investigation and mental health reports, this Court imposed the negotiated

     sentence of six and one-half to fifteen years of imprisonment for Attempt Murder and a

     concurrent sentence of fl ve to ten years of imprisonment for VUF A 6105, for a total sentence of

     six and one-half years to fifteen years of imprisonment. The Petitioner did not file a post-

     sentence motion or a Notice of Appeal.

                On May 18, 2018, the Petitioner filed a timely pro se Post-Conviction Relief Act

     ("PCRA") petition. On September 6, 20 I 8, appointed PCRA counsel filed a no-merit letter

     pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and a Motion to

     Withdraw. On September 13, 2018, after an independent review, this Court agreed that the
                                                    .    .                                       '
                                                        CP-51-CR-0003200-2016 Comm. v PARKS. EVANS
                                                                          Opinion
     I   The remaining charges were nolle prossed.

                                                               II                      II
                                                                     II II Ill I I I Ill Ill
                                                             II I II8284520861
instant petition was meritless and issued a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P.

907. On October 1, 2018, the Petitioner filed a prose Response to this Court's 907 and on

October 14, 2018, counsel filed an Amended Petition. On April 15, 2019, after this Court

conducted an evidentiary hearing, this Court dismissed the instant petition. On April 23, 2019,

the Petitioner filed a timely Notice of Appeal.

Guilty Plea Hearing Facts
         During the August 2, 2017 guilty plea hearing, the Petitioner admitted guilt to the

following facts:

                    On May 2, 2015, complainant, Corey Rex-Bey was at his
                paramour's house at 350 North 62"d Street in West Philadelphia,
                when he saw the Petitioner and they began to have an argument on
                the front porch. The Petitioner drew a silver firearm and shot at the
                complainant, hitting him one time in the stomach. Rickia Daniel,
                Nicole Daniel, and the complainant would testify that the Petitioner
                was the individual who shot the complainant. The complainant was
                taken to Lankenau Hospital where his gallbladder was removed, he
                underwent laparoscopic surgery, and suffered internal bleeding and
                problems with his bowels. The Petitioner fled to Georgia, where he
                was apprehended on February 29, 2016. The Petitioner is not
                licensed to carry a firearm and is prohibited from possessing a
                firearm due to a prior conviction for Fl Aggravated Assault and
                Possession of a Firearm by a Prohibited Person. 2

N.T. 8/2/2017 at 43-47.

         Prior to entering into the negotiated plea, the Petitioner requested that he be afforded an

opportunity to speak with his wife in this Court's consultation booth to discuss his decision to

plead guilty. This Court permitted the Petitioner to speak with his wife. At the conclusion of his

conversation with his wife, the Petitioner indicated that he wanted to enter into the negotiated

guilty plea. He told this Court that it was his decision and he was not influenced by his wife's

opinion. Id. at 23-25, 29-30, 32.



i   See CP-51-CR-806971-2006.
                                                                                                       2
        The Commonwealth presented two different plea options to the Petitioner if he chose to

enter into a guilty plea. The Petitioner had the option to accept a sentence of six and one half

years to fifteen years of imprisonment, or six years to twenty years of imprisonment. This Court

explained the difference in the sentencing options to the Petitioner. Id. at 14, 18.

PCRA Evidentiary Hearing Facts

        According to trial counsel, he spoke with the Petitioner's wife, Shakara Hickman, about

the Petitioner's option to enter into a negotiated guilty plea, prior to the guilty plea hearing. Trial

counsel often spoke with Hickman via text message and phone conversations. Trial counsel did

not receive any communication from Hickman within thirty days of the plea/sentence. N.T.

4/15/2019 at 35-37.

       On August 28, 2017, trial counsel received a letter from the Petitioner requesting a copy

of his discovery and other court documents. Trial counsel responded to the Petitioner's letter and

acted upon his request. The Petitioner made no reference to his guilty plea in this letter. The

letter dated August 28, 2017 was the only letter trial counsel received from the Petitioner in the

month after his guilty plea. N.T. 4/15/2019 at 33-34.

       On March 12, 2018, six months later, trial counsel received a text message from Hickman

asking him to file an appeal on the Petitioner's behalf. Trial counsel responded to Hickman,

informing her that he does not practice appellate law and that the Petitioner never requested that

an appeal be filed on his behalf. He also told Hickman that before the Petitioner entered into the

guilty plea, he explained to the Petitioner that his appellate rights were very limited on appeal.

N.T. 4/15/2019 at 35-37, Petitioner's Exhibit 2.

       The Petitioner testified that he sent a letter to trial counsel on August 8, 2017, requesting

that he file a Motion to Withdraw the Guilty Plea. He claimed that he wrote the letter while he



                                                                                                       3
was at SCI Graterford and made a copy of the letter in the law library. The Petitioner did not

make a copy of the envelope associated with his letter to trial counsel because he received the

envelope for free from the prison. He also alleged that he asked his wife to relay a message to

trial counsel about filing an appeal. The Petitioner claimed his wife told him that she eventually

sent a text message to trial counsel requesting he file an appeal on the Petitioner's behalf, and

trial counsel told her he did not practice appellate law. This Court did not believe that the

Petitioner ever sent this letter to trial counsel or that it even existed. Id at 9-11, 13-14.

Discussion

          The Petitioner raises three issues for review, alleging trial counsel was ineffective for: (1)

unlawfully inducing him to enter a guilty plea; (2) failing to withdraw his guilty plea; and, (3)

failing to file an appeal at the Petitioner's request. To warrant relief based on an ineffectiveness

claim, a petitioner must show that such ineffectiveness "in the circwnstances of the particular case,

so undermined the truth-determining process that no reliable adjudication of guilt or innocence

could have taken place." Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014); 42 Pa.C.S. §

9543(a)(2)(ii). Counsel is presumed to have rendered effective assistance. Commonwealth v.

Weiss, 81 A.3d 767, 783 (Pa. 2013) (citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa.

2012)).

          To overcome the presumption, the Petitioner has to satisfy the performance and prejudice

test set forth in Strickland v, Washington, 466 U.S. 668 (1984). The Supreme Court of

Pennsylvania has applied the Strickland test by looking to three elements, whether (I) the

underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or

failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's

lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been



                                                                                                       4
different. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). If a claim fails under any

necessary element of the Pierce test, the court may proceed to that element first. Commonwealth

v. Bennett, 57 AJd 1185, 1195-1196 (Pa. 2011 ). Counsel will not be deemed ineffective for

failing to raise a meritless claim. Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014) (citing

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)).

        The Petitioner claims his actual innocence, alleging that there is no evidence to support

his involvement in the crimes charged, and that trial counsel was ineffective for inducing him to

enter a guilty plea. Allegations of ineffectiveness in the context of a guilty plea serve as a basis

for relief only if the ineffectiveness caused the petitioner to enter an involuntary or unknowing

plea. Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citing Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007)). Where the petitioner enters his plea based on the

advice of counsel, voluntariness is determined by whether counsel's advice was within the range

of competence demanded by attorneys in criminal cases. Id.

       Pleas must be taken in open court, and trial courts must conduct an on the record

colloquy to ascertain whether the defendant is aware of his rights and the consequences of his

plea. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). Through its colloquy,

the trial court must affirmatively demonstrate that the defendant understands: (1) the nature and

charges to which he pleads guilty; (2) the factual basis for the plea; (3) his right to trial by jury;

(4) the presumption of his innocence; (5) the permissible ranges of sentences and fines; and, (6)

that the judge is not bound by an agreement unless the defendant accepts it. Pa.R.Crim.P. 590

Comment. To be eligible for relief based on an unlawful inducement claim, a petitioner must

plead and prove by a preponderance of the evidence that his conviction resulted from "a plea of




                                                                                                         5
guilty unlawfully induced where the circumstances make it likely that the inducement caused the

petition to plead guilty and the petitioner is innocent." See 42 Pa.C.S. § 9543(a)(2)(iii).

        The record reflects that the Petitioner entered into a knowing, intelligent, and voluntary

guilty plea. The Petitioner reviewed and signed a written guilty plea colloquy form which

indicated that he understood the nature of the charges he pled guilty to, the factual basis for his

plea, his right to a jury trial, the presumption of innocence, and the permissible �ange of

sentences. N.T. 8/2/2017 at 5-10, 33-34, 43-47. By signing the colloquy form, the Petitioner

indicated that he wished to enter his plea on his own volition and willingly gave up defenses to

the charges and the vast majority of his appellate rights.

       This Court supplemented the Petitioner's written colloquy form with an extensive oral

colloquy, during which this Court confirmed that the Petitioner received his high school diploma,

could read, write, and understand the English language, had never been treated for a mental

illness, and was not under the influence of drugs or alcohol. N.T. 8/2/2017 at 20. This Court

further verified that the Petitioner understood that he was giving up all of his rights to trial. Id. at

21-23, 35-38. This Court described the elements and maximum penalties of each crime to the

Petitioner and reminded him that he was presumed to be innocent and that this Court was

imposing a sentence that the Petitioner himself requested. id at 37-38. This Court also

discussed at length with the Petitioner the secondary effects of his plea, including the possibility

that he would serve back time for a previous case because he was on State Parole when he

committed the instant offense. Id. at 11-13. Armed with this information, the Petitioner decided

to accept the Commonwealth's negotiated plea. After this Court heard a summary of the facts

and determined that the Commonwealth had sufficient evidence to prove the Petitioner guilty, it




                                                                                                       6
accepted his plea based on the Petitioner's tremendous family support, his age, and his

acceptance of responsibility. Id at 51-53.

       Trial counsel's recommendation to plead guilty was sound, as the instant plea avoided

exposure to significant jail time. The Petitioner was sentenced under the applicable sentencing

guidelines in place at the time of the offense in 2015, which is the Seventh Edition, Amendment

2. See Pennsylvania Sentencing Guidelines, 204 Pa. Code§§ 303.1-303.14 (2014). With his

prior record score of five, the standard range of sentences for Attempt Murder (OGS 14) is 210

months to the statutory limit of240 months when the deadly weapon enhancement is applied; the

standard range for Aggravated Assault (OGS 11) is seventy two to ninety months (this charge

merged with Attempt Murder); the standard range for VUF A 6105 (OGS I 0) has a standard

range of sixty to seventy two months, and the standard range for PIC (OGS 4) is nine to sixteen

months, for a total maximum sentence of thirty to sixty years imprisonment. By electing to plead

guilty to Attempt Murder and VUF A 6105, which carried a maximum combined sentence of

twenty-two and one-half to forty-five years imprisonment, the Petitioner limited his maximum

exposure to imprisonment by thirty years. When it accepted the negotiated guilty plea, this Court

acknowledged the significant deviation below the guideline range in the Petitioner's sentence.

       Nothing on the record indicates that the Petitioner with misled by trial counsel. This

Court advised the Petitioner that he did not need to plead guilty and could take his case to trial.

N.T. 8/2/2017 at 35. Further, this Court gave the Petitioner an opportunity to speak with his wife

prior to entering into the plea so he could make a decision that was in his best interest. Id. at 29-

30. In addition, the Petitioner was counseled by his competent defense attorney and thoroughly

discussed the various options available to him before making his decision to plead guilty, as well

as the option to plead nolo contendere. Id. at 19-20. This Court confirmed with the Petitioner



                                                                                                      7
that it was his decision to p]ead guilty, not the decision of his wife or his attorney. Id. at 29.

Accordingly, there is no evidence supporting the Petitioner's claim that he was coerced into

pleading guilty.

       In the Petitioner's next claim, he alleges trial counsel was ineffective for failing to file a

motion to withdraw his guilty plea. A defendant must file a written post-sentence motion to

withdraw a guilty plea no later than IO days after imposition of the sentence. Pa.R.Crim.P. 720.

The standard for post-sentence withdraw of a guilty plea is a stringent one, and requires the

defendant to establish manifest injustice. Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa.

2015). The bare assertion of innocence is not, in it of itself, a reason to require the court to grant

a defendant's motion to withdraw a guilty plea. Id. (citing Commownealth v. Carrasquillo, 115

A.3d 1284 (Pa. 2015)). Post-sentence motions for withdraw are subject to higher scrutiny since

courts strive to discourage entry of guilty pleas as sentence-testing devices. Commonwealth v.

Broaden, 980 A.2d 124, 129 (Pa. 2009).

       The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable

merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel,

under which the defendant must show that counsel's deficient stewardship resulted in a manifest

injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea.

This standard is equivalent to the "manifest injustice" standard applicable to all post-sentence

motions to withdraw a guilty plea. Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super.

2016) (citing Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005)). 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. Id. (quoting Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007)).



                                                                                                        8
       On September 6, 2018, PCRA counsel filed a Finley letter in the instant case, and mailed

a copy of his letter to the Petitioner. On October 1, 2018, upon receiving PCRA counsel's Finley

letter, which outlined the standard for withdrawing a guilty plea, the Petitioner filed a 907

Response with this Court, and attached a letter, dated August 8, 20 l 7, in which the Petitioner

claims he sent to trial counsel requesting that he file a Motion to Withdraw the Guilty Plea. The

Petitioner did not attach this letter as an exhibit to his prose petition.

       This Court believes that the Petitioner created the August 8, 201 7 letter to trial counsel

after PCRA counsel filed his Finley letter, once he learned of the timing requirements for

withdrawing his guilty plea. At the evidentiary hearing, trial counsel provided clear and credible

testimony that he never received a letter from the Petitioner to withdraw his guilty plea, and that,

if he had received a request, he would have filed a motion on the Petitioner's behalf. N.T.

4/15/2019 at 33-34. Based on the evidence and testimony presented at the evidentiary hearing,

this Court made a credibility determination that trial counsel testified truthfully and that the

Petitioner did not send him a letter requesting his guilty plea be withdrawn.

       This Court further notes that the Petitioner has failed to demonstrate a manifest injustice

warranting the withdrawal of his plea. Prior to entering into the negotiated plea, the Petitioner

reviewed the Written Guilty Plea Colloquy with trial counsel and signed it before this Court. See

Written Guilty Plea Colloquy Form, attached as "Exhibit A." This Court also conducted a full

and proper guilty plea colloquy where the Petitioner confirmed that he understood the nature of

the charges to which he was pleading guilty, the factual basis for the plea, and the permissible

ranges of sentences for the offenses charge. N.T. 8/2/2017 at 5-10, 33-34, 43-47. There is

nothing on the record to warrant the withdrawal of his plea. The Petitioner did not suffer

manifest injustice, and therefore, this claim is without merit.



                                                                                                     9
       The Petitioner also alleges trial counsel was ineffective for failing to file an appeal. If the

petitioner does not file a post-sentence motion, his notice of appeal shall be filed within 30 days

of imposition of sentence. See Pa.R.Crim.P. 720. It is well settled that when a lawyer fails to file

a direct appeal requested by the petitioner, the petitioner is automatically entitled to

reinstatement of his direct appeal rights. Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa.

Super. 2011) (citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)).

       In cases where the petitioner does not clearly convey to trial counsel whether he wishes

to file a direct appeal, trial counsel has a constitutionally imposed duty to consult with the

petitioner about an appeal when there is reason to think either that a rational petitioner would

want to appeal or that this particular petitioner reasonably demonstrated to trial counsel that he

was interested in appealing. Commonwealth v. Rivera, 154 A.3d 3 70 (Pa. Super. 2017) (citing

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). In making this determination, a court must take

into account all the information trial counsel knew or should have known. Id.

       Although not determinative, a highly relevant factor in this inquiry will be whether the

conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of

potentially appealable issues and because such a plea may indicate that the petitioner seeks an

end to judicial proceedings. Id Even in cases where the petitioner pleads guilty, the court must

consider such factors as whether the petitioner received the sentence bargained for as part of the

plea and whether the plea expressly reserved or waived some or all appeal rights. Id. Only by

considering all relevant factors in a given case can a court properly determine whether a rational

petitioner would have desired   an appeal (for example, because there are non-frivolous grounds

for appeal) or that a particular petitioner sufficiently demonstrated to counsel an interest in an

appeal. Id.



                                                                                                      IO
        The Petitioner fails to suggest which issues, if raised on direct appeal, would not be

considered frivolous. This Court explained the Petitioner's limited appellate rights to him prior to

him entering into the negotiated plea. Trial counsel also discussed the Petitioner's appellate

rights with him and explained that they were very limited once he entered into the negotiated

plea.3 Further, the Petitioner received the sentence bargained for, as this Court imposed the
sentence the Petitioner himself requested. This Court does not believe a rational Petitioner would

want to appeal in this situation.

        The record is void of any indications that the Petitioner was interested in appealing at the

time his sentence was imposed. As discussed supra, this Court did not believe the Petitioner's

testimony that he requested trial counsel file an appeal after he was sentenced and he did not

supply this Court with any proof that he sent a request to trial counsel within thirty days of his

sentencing. Instead, he provided this Court with a letter he sent to trial counsel on February 6,

2018, five months and five days after the time limit had expired, where he requested that trial

counsel file a Motion to Reconsider. At the time this letter was sent, the Petitioner had just been

informed by the Board of Probation and Parole that he was required to serve his back time. The

Petitioner also included his wife's untimely text messages to trial counsel, requesting he file an

appeal on the Petitioner's behalf. Because both requests were untimely and there is nothing in the

record to indicate that the Petitioner requested an appeal on an earlier date, this argument must

fail.




3This Court believes trial counsel discussed the Petitioner's appellate rights with him both before and after he
entered into the negotiated plea.

                                                                                                                   11
For the foregoing reasons, the judgment of this Court should be affirmed.

                                                    BY THE COURT




                                                                            12
Commonwealth v. Evans Parks
CP-51-CR-0003280-2016

                                         PROOF OF SERVICE

       I hereby certify that I am this day serving the foregoing filing upon the personts), and in the manner
indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:


                             Philadelphia District Attorney's Office
                             Three South Penn Square
                             Philadelphia, PA 19107
                              Attn: Tracey Kavanagh, Esq.

Type of Service:              Hand Delivery

                              Gary Sanford Server, Esq.
                              52103 Delaire Landing
                              Philadelphia, PA 19114

Type of Service:              First-Class Mail

                              Evans Parks
                              HN7368
                              SCI Fayette
                              48 Overlook Drive
                              La Belle, PA l 5450

Type of Service:              First-Class Mail

Dated: June 19, 2019




Steph
Law
Honorable Barbara A. McDermott
