J-S16032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    DARRIN GOINS                               :
                                               :      No. 1600 MDA 2017
                       Appellant               :


                Appeal from the PCRA Order September 14, 2017
              in the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001384-2010


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                   FILED MAY 30, 2018

        Appellant, Darrin Goins, appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. He claims that he received ineffective assistance counsel in connection

with his direct appeal. We affirm.

        We take the relevant facts and procedural history of this case from our

independent review of the certified record. On November 1, 2010, after the

trial court had assembled a jury panel in preparation for Appellant’s trial, he

entered a guilty plea to one count of aggravated assault. 1 The charge stems

from Appellant’s pushing of the victim onto the top of a fence, causing

blindness in the victim’s right eye.

____________________________________________


1   18 Pa.C.S.A. § 2702(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On December 23, 2010, Appellant filed a motion to withdraw his guilty

plea, and the trial court held a hearing on the matter on January 28, 2011.

At the hearing, Appellant offered a bare claim of innocence as the reason for

seeking withdrawal of the plea. (See N.T. Petition to Withdraw Guilty Plea,

1/28/11, at 2-3, 6). The trial court denied the motion. On February 11, 2011,

the court sentenced Appellant to a term of not less than seven and a half nor

more than twenty years’ incarceration. Appellant did not initially file a direct

appeal.    However, on December 18, 2014, his direct appeal rights were

reinstated nunc pro tunc, following litigation of a PCRA petition.

       On direct appeal, Appellant raised one issue, challenging the trial court’s

denial of his pre-sentence motion to withdraw his guilty plea.              (See

Commonwealth v. Goins, 2015 WL 6956655, unpublished memorandum at

*3 (Pa. Super. filed Nov. 10, 2015)).2 This Court affirmed the judgment of

sentence on November 10, 2015. (See id. at *1). Appellant did not file a

petition for allowance of appeal (PAA) with our Supreme Court. On April 6,

2016, Appellant filed a pro se application to file a PAA nunc pro tunc, which

our Supreme Court denied on June 20, 2016, without prejudice to his right to

seek similar relief through the PCRA. (See Order, 6/20/16).

____________________________________________


2 Appellant framed his issue as follows: “Whether the trial court abused its
discretion in finding that Appellant’s assertion of innocence was not a fair and
just reason for withdrawing [the] guilty plea; and, further finding that the
Commonwealth would be substantially prejudiced if Appellant’s Pre-Sentence
Motion for Withdrawal of Guilty Plea were granted?” (Goins, supra at *3)
(record citation omitted).


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       Appellant, acting pro se, filed the instant, timely PCRA petition on

August 3, 2016.       Appointed counsel filed a supplemental brief in support

thereof on January 30, 2017. The PCRA court held a hearing on August 22,

2017, on the issue of whether direct appeal counsel was ineffective for failing

to file a PAA with the Pennsylvania Supreme Court. At the hearing, Appellant

presented evidence showing that he asked counsel to file a PAA.             On

September 14, 2017, the PCRA court entered a memorandum and order

dismissing the PCRA petition. This timely appeal followed.3

       Appellant raises one issue for our review: “Whether the [PCRA] court

committed an error of law when it denied relief pursuant to the [PCRA] on the

basis that appellate counsel was ineffective for failing to consult about or

timely file a petition for allowance of appeal to the Supreme Court of

Pennsylvania even though Appellant specifically requested that the petition be

filed?” (Appellant’s Brief, at 2) (unnecessary capitalization omitted).

       “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017), appeal denied, 176 A.3d 838 (Pa. 2017) (citation omitted). “The PCRA




____________________________________________


3   Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on October 24, 2017. See Pa.R.A.P. 1925(b). The
PCRA court issued a Rule 1925(a) statement on December 7, 2017, in which
it referred this Court to its September 14, 2017 memorandum and order. See
Pa.R.A.P. 1925(a).

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court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Id. (citation omitted).

      “In order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in Subsection

9543(a)(2); one of those circumstances is the ineffective assistance of

counsel.” Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa. Super. 2011)

(citation omitted).

             . . . Because there is a presumption that counsel provided
      effective representation, the defendant bears the burden of
      proving ineffectiveness. To prevail on an ineffective assistance
      claim, a defendant must establish (1) [the] underlying claim is of
      arguable merit; (2) the particular course of conduct pursued by
      counsel did not have some reasonable basis designed to effectuate
      his [client’s] interests; and (3) but for counsel’s ineffectiveness,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. A failure to satisfy any
      prong of the test for ineffectiveness will require rejection of the
      claim.

Id. (citations and quotation marks omitted).

      Regarding the prejudice prong, our Supreme Court has noted:

             . . . [T]here have been only three circumstances under
      which this Court determined that counsel’s conduct constituted a
      constructive denial of counsel warranting a presumption of
      prejudice . . . [including] where counsel failed to file a requested
      petition for allowance of appeal, thereby depriving the client of the
      right to seek discretionary review, see Commonwealth v.
      Liebel, 573 Pa. 375, 825 A.2d 630 (2003).

Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009) (some citations

omitted).



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     In Commonwealth v. Ellison, 851 A.2d 977 (Pa. Super. 2004), this

Court interpreted our Supreme Court’s decision in Liebel as follows:

            In Liebel, supra, the Supreme Court held that a petitioner
     is no longer required to prove that the Court would have granted
     review had a timely PAA been filed in order to state a cognizable
     claim of counsel’s ineffectiveness under the PCRA. The Supreme
     Court noted that while a defendant does not have an automatic
     right to an appeal in the Supreme Court, he has a right to file a
     PAA, “provided that appellate counsel believes that the claims
     that a petitioner would raise . . . would not be completely
     frivolous.” 825 A.2d at 635. A defendant also has a rule-based
     right to counsel throughout the direct appeal process. See id.;
     Pa.R.Crim.P. 122(C)(3).       The Court observed that counsel’s
     unjustified failure to file a PAA when requested to do so “is the
     functional equivalent of having no representation at all on direct
     appeal.” 825 A.2d at 635. Thus, “ ‘where the remaining
     requirements of the PCRA are satisfied, the petitioner is not
     required to establish his innocence or demonstrate the merits of
     the issue or issues which would have been raised on appeal.’ ” Id.

                                  *    *    *

           . . . Liebel eliminates the petitioner’s need to prove
     prejudice, the third prong of an ineffectiveness claim. This means
     a PCRA petitioner no longer needs to show that he is innocent or
     that the Supreme Court would have taken the appeal or that he
     would have won in the Supreme Court. Prejudice is presumed.

           That brings us to the remaining two prongs of
     ineffectiveness-arguable merit and no reasonable basis. While
     Liebel does not directly address these requirements, based on
     our close reading of the opinion, we believe they are intertwined.

            Liebel indicates that counsel’s failure to file a requested PAA
     amounts to ineffectiveness if his failure to file was “unjustified.”
     825 A.2d at 635. We believe this is the equivalent of saying
     counsel had no reasonable basis for failing to file a PAA. If counsel
     was unjustified, then the underlying claim (i.e., failure to file a
     PAA) has arguable merit and ineffectiveness is established. If
     counsel’s failure to file a PAA was justified, then there would be
     no arguable merit to the claim that counsel was ineffective for
     failing to do so. The two prongs are seemingly inseparable.

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      . . . [Under Liebel,] a petitioner needs to show only that the
      claims he would have raised in PAA are not completely frivolous,
      i.e., have some level of merit, regardless of whether they are
      actually “winning” arguments.

                                   *    *    *

            In sum, we interpret Liebel to mean that a PCRA petitioner
      no longer needs to show that he is innocent or that the Supreme
      Court definitely would have taken the appeal or that he would
      have won in the Supreme Court in order to prove counsel’s
      ineffectiveness for failing to file a PAA. Nor does he need to
      demonstrate the merits of the underlying issues. The only
      things a petitioner needs to show are that he asked his
      attorney to file a PAA and there is some chance that the
      Supreme Court would have taken his case, i.e., his claims
      are not completely frivolous.

Ellison, supra at 979-81 (some citations omitted; emphases adjusted).

      Here, the record reflects that Appellant asked direct appeal counsel to

file a PAA. (See N.T. PCRA Hearing, 8/22/17, at 9-10; Exhibits A and C to

Supplemental Brief in Support of PCRA Petition, Letters from Appellant to

Counsel dated 9/28/15 and 12/21/15).             However, Appellant has not

demonstrated that his direct appeal claim—challenging the trial court’s denial

of his motion to withdraw his guilty plea based on his bare assertion of

innocence—rises above frivolity. See Ellison, supra at 981.

      This Court has explained:

      While a pre-sentence motion to withdraw is to be liberally allowed,

                  there is no absolute right to withdraw a guilty
            plea; trial 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

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           fair-and-just reason will suffice to support a grant,
           unless withdrawal would work substantial prejudice to
           the Commonwealth.

     Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291–92 (Pa.
     2015).

           The Carrasquillo Court, breaking with prior precedent, held
     that a bare assertion of innocence is no longer a fair and
     just reason permitting a pre-sentence withdrawal of a
     guilty plea. Instead, “a defendant’s innocence claim must
     be at least plausible to demonstrate, in and of itself, a fair
     and just reason for presentence withdrawal of a plea.” Id.
     at 1292. Our High Court outlined that the correct inquiry “on
     consideration of such a withdrawal motion is whether the accused
     has    made     some     colorable demonstration,     under   the
     circumstances, such that permitting withdrawal of the plea would
     promote fairness and justice.” Id. In that decision, our Supreme
     Court ruled that the defendant had not offered a plausible
     innocence claim given that it was rather bizarre—a “devil made
     me to it” claim of innocence—and since the innocence claim was
     offered just prior to sentencing.

Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017) (footnote and

one citation omitted; case citation formatting provided; emphasis added).

     Here, on direct appeal, this Court determined that Appellant’s bare

assertion of innocence was implausible, and that it was not a fair and just

reason for withdrawing the plea. (See Goins, supra at *4). The Court stated

that the victim’s testimony at the        preliminary hearing “clearly and

unequivocally established Appellant’s guilt[,]” and noted the Commonwealth’s

readiness to proceed to trial at the time of the plea. (Id.). Thus, the only

claim for which Appellant now seeks review in the Pennsylvania Supreme

Court is “completely frivolous.” Ellison, supra at 981.




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      Under these circumstances, where Appellant’s sole allowance of appeal

issue is specious, we conclude that his claim of ineffectiveness for counsel’s

failure to file a PAA does not merit relief. See Commonwealth v. Rigg, 84

A.3d 1080, 1088-90 (Pa. Super. 2014) (applying Ellison and determining

counsel was not ineffective in electing not to file requested PAA, where sole

direct appeal issue was frivolous). Accordingly, we affirm the PCRA court’s

order denying Appellant’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/30/18




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