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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
GILBERT E. PETERSON, II,                 :         No. 2080 MDA 2016
                                         :
                         Appellant       :


               Appeal from the PCRA Order, November 29, 2016,
                 in the Court of Common Pleas of York County
              Criminal Division at Nos. CP-67-CR-0005763-2014,
              CP-67-CR-0008774-2013, CP-67-CR-0008776-2013


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED SEPTEMBER 21, 2017

        Gilbert E. Peterson, II, appeals from the order of November 29, 2016,

denying his PCRA1 petition. Appointed counsel, John M. Hamme, Esq., has

filed a petition to withdraw and accompanying Turner/Finley “no merit”

brief.2   After careful review, we grant counsel’s petition to withdraw and

affirm the order denying PCRA relief.

        The record reflects that on July 6, 2015, appellant entered an open

guilty plea to one count each of simple assault, criminal mischief, and




1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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escape.3    Appellant completed a written guilty plea colloquy as well as an

on-the-record oral plea colloquy. (Notes of testimony, 7/6/15 at 2-6.) The

charges of simple assault and criminal mischief related to separate incidents

involving Terry Laughman. On September 1, 2013, appellant was at Sheetz

and saw his fiancée, Danielle Eckert, sitting on the curb with Mr. Laughman.

(Id. at 4.) An argument ensued and when appellant exited the parking lot,

he purposely struck the front tire of Mr. Laughman’s motorcycle, knocking it

to the ground. (Id.) On December 5, 2013, appellant got into a fistfight

with Mr. Laughman at Ms. Eckert’s residence, causing Mr. Laughman to

suffer cuts and bruising.    (Id. at 3-4.)    Regarding the escape charge, on

August 8, 2014, appellant was in police custody at York Hospital on

unrelated charges when he absconded. (Id. at 5.)

        Appellant asked to be released on supervised bail because his mother

recently had a stroke.     (Id. at 6-7.)     The Commonwealth requested that

appellant be remanded to the custody of York County Prison until sentencing

because of his status as a repeat felony offender and his prior failure to

appear, resulting in the issuance of a bench warrant. (Id. at 7-8.) The trial

court accepted appellant’s guilty plea but denied his request for supervised

bail pending sentencing.    (Id. at 9-10.)     Subsequently, however, the trial

court granted a written motion for supervised bail.       (Notes of testimony,

11/29/16 at 20.)


3
    18 Pa.C.S.A. §§ 2701(a)(1), 3304(a)(5), and 5121(a), respectively.


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     Sentencing was scheduled for August 21, 2015; however, appellant

failed to appear.    Appellant was picked up on a bench warrant on

December 29, 2015, and appeared before the Honorable Maria Musti Cook

the following day, December 30, 2015.        The pre-sentence investigation

(“PSI”) report was unable to be completed by the adult probation office

because appellant left the jurisdiction; however, appellant indicated that he

wanted to proceed to immediate sentencing. (Notes of testimony, 12/30/15

at 2-4, 7-8.) Judge Cook imposed sentences of 3 to 6 months’ incarceration

for simple assault, 6 to 12 months for criminal mischief, and 12 to 24

months for escape, run consecutively for an aggregate sentence of 21

months to 42 months’ incarceration.       (Id. at 8-9.)   Each of appellant’s

sentences fell within the standard range of the sentencing guidelines. (Id.

at 8.) Appellant was also ordered to pay restitution to Mr. Laughman in the

amount of $250 and to Geico Indemnity Company in the amount of

$2,849.68, for the damage to Mr. Laughman’s motorcycle. (Id. at 10.)

     Appellant filed an untimely post-sentence motion to withdraw his plea

on January 12, 2016, which was denied on January 20, 2016. Subsequently,

appellant filed a timely pro se PCRA petition on February 29, 2016. Counsel

was appointed, and an evidentiary hearing was held on November 29, 2016,

at which both appellant and plea counsel, T. Korey Leslie, Esq., testified.

Immediately following the hearing, appellant’s petition was denied.      This

timely appeal followed. Appellant has complied with Pa.R.A.P. 1925(b), and



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the PCRA court filed a Rule 1925(a) opinion. Attorney Hamme has filed a

petition to withdraw and “no-merit” brief in accordance with Turner/Finley

practice.

      Initially, we note our standard of review:

            Our standard of review of a PCRA court’s dismissal of
            a PCRA petition is limited to examining whether the
            PCRA court’s determination is supported by the
            evidence of record and free of legal error.
            Commonwealth v. Ceo, 812 A.2d 1263, 1265
            (Pa.Super.2002) (citation omitted). Great deference
            is granted to the findings of the PCRA court, and
            these findings will not be disturbed unless they have
            no support in the certified record. Commonwealth
            v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)
            (citation omitted).

Commonwealth       v.   Wilson,   824    A.2d   331,   333   (Pa.Super.   2003)

(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).

      Before addressing the merits of appellant’s appeal, we must determine

whether Attorney Hamme has complied with the procedural dictates for

PCRA counsel seeking to withdraw under Turner/Finley and their progeny.

      We have explained that:

            Counsel petitioning to withdraw from PCRA
            representation       must    proceed      ...    under
            [Commonwealth v.] Turner, [518 Pa. 491, 544
            A.2d 927 (1988)], and [Commonwealth v.] Finley,
            [379 Pa.Super. 390, 550 A.2d 213 (1988)] 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.


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                  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.

                                    ***

                  Where counsel submits a petition and
                  no—merit letter that . . . satisfy the
                  technical demands of Turner/Finley, the
                  court—trial court or this 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) (internal citations omitted)
            (quoting Commonwealth v. Wrecks, 931 A.2d
            717, 721 (Pa.Super. 2007)).

Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa.Super. 2016)

(brackets in Muzzy).

      Instantly, Attorney Hamme has filed an application to withdraw,

asserting that he has thoroughly reviewed the trial court record and has

concluded that there are no meritorious issues present and that the appeal is

wholly frivolous; he has attached a “no-merit” letter, setting forth each issue

appellant wishes to have reviewed, and why each is meritless; and he has

forwarded to appellant both a copy of the application to withdraw and

“no-merit” letter, and has advised appellant that he has the right to proceed

pro se, retain new counsel, or raise any additional points he deems worthy


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of   this   court’s   consideration.4         Therefore,   we   determine    that

Attorney Hamme has complied with the requirements of Turner/Finley, and

we will proceed to an independent review of the record to decide whether

the PCRA petition is, in fact, meritless.

      Appellant alleged that Attorney Leslie was ineffective for failing to file a

pre-sentence motion to withdraw his guilty plea; or in the alternative, for

failing to file a timely post-sentence motion to withdraw the plea. Appellant

testified that he specifically requested Attorney Leslie to file a pre-sentence

motion to withdraw the guilty plea immediately after the plea hearing.

(Notes of testimony, 11/29/16 at 11, 14.) Appellant testified that the basis

for withdrawal was actual innocence. (Id. at 15.)

      Appellant also testified that Attorney Leslie promised him a sentence of

time-served. (Id. at 7.) Appellant testified that the only reason he agreed

to plead guilty was to get a time-served sentence with immediate parole.

(Id. at 7-8.)   After appellant received a sentence of 21 to 42 months, he


4
    Attorney Hamme’s April 12, 2017 letter to appellant informed him,
inter alia, that “[Y]ou have the right to retain new counsel to represent you
in your appeal and all matters arising therefrom. Also, you have the right to
file a brief on your own raising any additional points you deem worth [sic] of
the     Court’s   attention.”      (Turner/Finley      brief, Appendix    D.)
Attorney Hamme also advised appellant that, “If you desire to file a brief on
your behalf, I would recommend that it be done so [sic] as soon as
possible.” (Id.) We conclude that this language fairly and accurately
informed appellant of his immediate right to proceed in the appeal pro se or
through privately retained counsel. Cf. Muzzy, 141 A.3d at 511-512 (PCRA
counsel’s letter to the petitioner improperly conveyed that he could not
proceed pro se or with private counsel unless, and until, this court granted
counsel’s withdrawal request, which was incorrect).


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asked Attorney Leslie to file a post-sentence motion to withdraw the guilty

plea. (Id. at 8-9.)

            To    prevail  on     a    claim   alleging  counsel’s
            ineffectiveness under the PCRA, Appellant must
            demonstrate (1) that the underlying claim is of
            arguable merit; (2) that counsel’s course of conduct
            was without a reasonable basis designed to
            effectuate his client’s interest; and (3) that he was
            prejudiced by counsel’s ineffectiveness, i.e. there is
            a reasonable probability that but for the act or
            omission in question the outcome of the proceeding
            would have been different.        Commonwealth v.
            Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
            Commonwealth v. Douglas, 537 Pa. 588, 645
            A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

            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.”

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), appeal

denied, 860 A.2d 488 (Pa. 2004), quoting Commonwealth v. Hickman,

799 A.2d 136, 141 (Pa.Super. 2002) (internal citations omitted).

            Preliminarily, we recognize that at “any time before
            the imposition of sentence, the court may, in its
            discretion, permit, upon motion of the defendant, or
            direct sua sponte, the withdrawal of a plea of guilty
            or nolo contendere and the substitution of a plea of
            not guilty.”    Pa.R.Crim.P 591(A).    The Supreme


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          Court of Pennsylvania recently clarified the standard
          of review for considering a trial court’s decision
          regarding a defendant’s pre-sentence motion to
          withdraw a guilty plea:

                  [T]rial   courts   have    discretion    in
                  determining     whether    a    withdrawal
                  request will be granted; such discretion
                  is to be administered liberally in favor of
                  the accused; and any demonstration by a
                  defendant of a fair-and-just reason will
                  suffice to support a grant, unless
                  withdrawal    would    work     substantial
                  prejudice to the Commonwealth.

          Commonwealth v. Carrasquillo, 631 Pa. 692, 115
          A.3d 1284, 1285, 1291-92 (2015) (holding there is
          no per se rule regarding pre-sentence request to
          withdraw a plea, and bare assertion of innocence is
          not a sufficient reason to require a court to grant
          such request). We will disturb a trial court’s decision
          on a request to withdraw a guilty plea only if we
          conclude that the trial court abused its discretion.
          Commonwealth v. Gordy, 73 A.3d 620, 624
          (Pa.Super. 2013).

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa.Super. 2016), appeal

denied,    A.3d       , 2017 WL 1374163 (Pa. 2017) (footnote omitted).

          In contrast, after the court has imposed a sentence,
          a defendant can withdraw his guilty plea “only where
          necessary    to    correct   a   manifest  injustice.”
          Commonwealth v. Starr, 450 Pa. 485, 301 A.2d
          592, 595 (1973).        “[P]ost-sentence motions for
          withdrawal are subject to higher scrutiny since
          courts strive to discourage the entry of guilty pleas
          as sentencing-testing devices.” Commonwealth v.
          Kelly, 5 A.3d 370, 377 (Pa.Super. 2010), appeal
          denied, 613 Pa. 643, 32 A.3d 1276 (2011).

          ***




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            To be valid [under the “manifest injustice” standard],
            a guilty plea must be knowingly, voluntarily and
            intelligently entered. Commonwealth v. Pollard,
            832 A.2d 517, 522 (Pa.Super. 2003). “[A] manifest
            injustice occurs when a plea is not tendered
            knowingly,       intelligently,  voluntarily,     and
            understandingly.” Commonwealth v. Gunter, 565
            Pa. 79, 771 A.2d 767, 771 (2001).

Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016), quoting

Commonwealth v. Prendes, 97 A.3d 337, 351-354 (Pa.Super. 2014)

(parallel citations omitted).

      Regarding appellant’s allegation that he asked Attorney Leslie to file a

pre-sentence motion to withdraw his plea, Attorney Leslie testified that it

was not a formal request.       (Notes of testimony, 11/29/16 at 20-21, 23.)

Attorney Leslie testified that immediately after pleading guilty on July 6,

2015, he and appellant had a conversation outside of the courtroom:

            He said he wanted to withdraw his plea. I don’t -- I
            wouldn’t say that he asked. I think his specific
            phrase was, F this, I want to withdraw my plea and
            go to trial. And I told him that was stupid, and then
            the sheriffs took him back into custody.

Id. at 23. Attorney Leslie testified that, “[appellant] was upset because the

Court did not release him on supervised bail that day.”          (Id. at 25.)

Attorney Leslie also noted that, “after he got out on bail, he didn’t make that

request anymore.” (Id. at 23.) Attorney Leslie’s testimony dovetails with

Judge Cook’s recollection that appellant was extremely upset about being

denied supervised bail:




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              At the conclusion of the entry of the guilty plea, we
              addressed a number of situations regarding
              [appellant’s] ability to leave the courtroom of his
              own volition that day. Attorney Leslie asked the
              Court to release [appellant] on supervised bail. The
              Court denied that request, and the Court, actually,
              very clearly remembers how upset [appellant] was
              that he was not going to be able to walk out the
              front door.

Id. at 32.      Appellant’s disappointment that his initial, oral motion for

supervised bail pending sentencing was denied was not a “fair and just

reason” for the pre-sentence withdrawal of his guilty plea.                    Indeed, as

Attorney Leslie observed, after his subsequent written motion for supervised

bail was granted, appellant did not repeat his request to withdraw his plea.

Attorney Leslie was not ineffective for failing to file a pre-sentence motion to

withdraw the guilty plea.

       We now turn to appellant’s allegation that he asked Attorney Leslie to

file   a   post-sentence   motion   to    withdraw      his   guilty   plea,    and   that

Attorney Leslie was ineffective for failing to do so in a timely manner.

Appellant has arguably satisfied the first two prongs of the ineffectiveness

test where Attorney Leslie did file the requested post-sentence motion to

withdraw appellant’s guilty plea but did so in an untimely fashion, and it was

denied on the basis of untimeliness.        However, we agree with Judge Cook

that appellant cannot prove prejudice.            As set forth above, to withdraw a

guilty plea after sentencing, a defendant must demonstrate a “manifest

injustice.”    Kpou, 153 A.3d at 1023.             Moreover, it is well settled that



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disappointment in the sentence actually imposed does not represent a

manifest injustice.   Commonwealth v. Muhammad, 794 A.2d 378, 383

(Pa.Super. 2002), citing Commonwealth v. Munson, 615 A.2d 343, 350

(Pa.Super. 1992).

        Appellant testified that Attorney Leslie promised him a time-served

sentence. (Notes of testimony, 11/29/16 at 7-8.) Appellant testified that he

pled guilty “to get out of jail.” (Id. at 9, 13.) Appellant’s version of events

was contradicted by Attorney Leslie, who denied ever promising appellant

any particular sentence. (Id. at 21-22.) Attorney Leslie testified that while

he thought they had a good argument for a time-served sentence, he never

promised appellant anything and did not coerce appellant into taking a plea.

(Id.)    After appellant did not receive a time-served sentence, he asked

Attorney Leslie to withdraw the guilty plea on the basis of coercion, which

Attorney Leslie specifically refuted. (Id. at 24-25.) In fact, Attorney Leslie

testified that appellant wanted to proceed to sentencing on December 30,

2015, without a completed PSI report against attorney advice.          (Id. at

24-25.) Judge Cook did not find appellant’s testimony that he was coerced

into taking the plea to be credible. (PCRA court opinion, 1/24/17 at 3-4.)

To the contrary, the record indicates that appellant was simply dissatisfied

with his sentence. (Id. at 3.)

        Furthermore, at the time he entered his guilty plea, appellant

acknowledged his guilt of the three charges and that there was no



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agreement    as   to   sentencing.     (Notes    of   testimony,   7/6/15   at   2.)

Attorney Leslie explained to appellant that the Commonwealth was free to

ask for any sentence it deemed appropriate. (Id.) See Pollard, 832 A.2d

at 523 (“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)).

      Additionally, to the extent appellant now asserts his actual innocence

of the charges, he does not demonstrate a manifest injustice necessary to

secure a post-sentence withdrawal of the guilty plea. See Kpou, 153 A.3d

at 1024 (“Indeed, this Court has held that post-sentence claims of innocence

do not demonstrate manifest injustice, see Commonwealth v. Myers, 434

Pa.Super. 221, 642 A.2d 1103, 1108 (1994) (holding ‘[a] defendant’s

post-sentence recantation of guilt does not rise to the level of prejudice on

the order of manifest injustice sufficient to require that he be permitted to

withdraw his plea of guilty.’)”). The PCRA court determined that appellant’s

plea was entered voluntarily, knowingly, and intelligently, and that appellant

failed to assert a valid basis to withdraw his guilty plea.          (PCRA court

opinion, 1/24/17 at 3-4.) Therefore, since appellant’s post-sentence motion

to withdraw his guilty plea would not have been granted, even if it was

timely filed, appellant cannot show how he was actually prejudiced by plea

counsel’s alleged ineffectiveness. (Id. at 4.)



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        Finally, we address appellant’s pro se response to Attorney Hamme’s

petition to withdraw as PCRA counsel and Turner/Finley no-merit letter,

filed   April     24,   2017.      Appellant     makes    various   allegations   of

Attorney Hamme’s ineffectiveness and also asks for new counsel and an

extension of time to file a brief.      However, it is well settled that issues of

PCRA counsel’s effectiveness cannot be raised for the first time on appeal.

Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa.Super. 2014) (en banc),

appeal denied, 101 A.3d 785 (Pa. 2014).                  Appellant complains that

Attorney Hamme did not file an amended petition on his behalf, instead

seeking to withdraw under Turner/Finley.

                Counsel’s duty under [Pa.R.Crim.P.] 904(a) to assist
                the petitioner on his first PCRA petition does not
                prevent him from seeking the court’s permission to
                withdraw pursuant to Turner/Finley where the
                issues on appeal lack merit. It is well accepted that
                a petitioner is not deprived of his right to counsel in
                situations where the court allows counsel to
                withdraw in this fashion.

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super. 2002),

citing Commonwealth v. Peterson, 756 A.2d 687, 689 (Pa.Super. 2000).

See also Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.Super.

2017) (“When appointed, counsel’s duty is to either (1) amend the

petitioner’s pro se Petition and present the petitioner’s claims in acceptable

legal terms, or (2) certify that the claims lack merit by complying with the

mandates of Turner/Finley.” (footnote omitted)).




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     Furthermore, while appellant is entitled to counsel on a first PCRA, it is

axiomatic   that   appellant   is   not   entitled   to   counsel   of   his   choice.

Commonwealth v. Jette, 23 A.3d 1032, 1041 (Pa. 2011) (“[A]n indigent

criminal defendant does not enjoy the unbridled right to be represented by

counsel of his own choosing.” (citations and footnote omitted)). Appellant is

not entitled to substitute counsel. In addition, appellant has not identified

any issues that could be addressed in a pro se brief, and no purpose would

be served by further delay.

     Order affirmed. Petition to withdraw granted. Appellant’s request for

an extension of time to file a comprehensive pro se brief is denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017




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