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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CARL A. NYBECK,

                            Appellant                     No. 978 MDA 2015


                   Appeal from the PCRA Order May 18, 2015
                 In the Court of Common Pleas of Tioga County
              Criminal Division at No(s): CP-59-CR-0000023-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 16, 2016

        Carl Nybeck (“Appellant”) appeals from an order denying him collateral

relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). At issue before the PCRA court was whether plea counsel offered

incompetent advice causing Appellant to plead guilty to one count of

possession with the intent to deliver methamphetamine (“PWID”), 1 for which

he    received   a    statutory   maximum      sentence   of   five   to   ten   years’

imprisonment.        Crediting plea counsel’s testimony that she neither gave

assurances downplaying the prospects of a maximum sentence nor

suggested the sentencing court could deny a pre-sentence request to

withdraw a plea, the PCRA court determined plea counsel did not deter

Appellant from withdrawing his guilty plea. We affirm.
____________________________________________


1
    35 P.S. § 780-113(a)(30).



*Former Justice specially assigned to the Superior Court.
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        On February 1, 2013, authorities charged Appellant with PWID and six

other    drug-related   offenses   stemming   from    the   discovery   of   a

methamphetamine laboratory located inside his residence. He subsequently

entered into a written plea agreement by which he would plead guilty to one

count of PWID in exchange for the dismissal of the remaining six charges

against him. According to Appellant’s PCRA petition, he briefly met with plea

counsel prior to sentencing and expressed his fear of receiving a statutory

maximum sentence given his past criminal history, the nature of his offense,

and his subsequent arrest on bench warrant for failing to appear.         She

reassured him that the court seldom imposed maximum sentences and, in

any event, held the option at that point to deny his request to withdraw, he

averred. Only because of this advice, Appellant maintained, did he forego a

motion to withdraw his plea. The sentencing court subsequently imposed a

statutory maximum sentence, from which Appellant took no direct appeal.

        After reviewing Appellant’s timely PCRA petition, the PCRA court

conducted a hearing.     Appellant testified consistently with the averments

contained in his petition to the extent he claimed that counsel’s alleged

advice caused him to forego seeking withdrawal of his plea. See N.T. PCRA

Hearing, 4/6/15, at 13-17.     Somewhat contradictorily, however, Appellant

ultimately attributed his failure to ask for a withdrawal at sentencing on his

resignation that “[he] was, you know, pretty much going to receive the max

no matter what happened.” N.T. at 17.




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      Plea counsel denied making sentencing predictions or addressing in

any way the court’s powers to deny a pre-sentence request to withdraw a

plea. For that matter, she denied knowing Appellant was even entertaining

the notion of withdrawing his plea, and she insisted she would have felt no

compunction about relating Appellant’s request to the court had he made his

concerns known and asked her to do so. N.T. at 7-8, 11-12. It was plea

counsel’s experience as the Tioga County Public Defender, she said, that the

judge presiding in this matter has “always been good about [granting plea

withdrawals]. There’s no problem with that[.] I’ve withdrawn before up to

the last minute and it’s no problem with the judge, he’s very liberal about

that and he always agrees to it so I’ve had no problems with that.” Id. She

testified that her pre-sentencing hearing discussion with Appellant instead

focused solely on the PSI report with its description of applicable guideline

ranges and on the five to ten year statutory maximum sentence he faced.

N.T. at 8, 10-11.

      Crediting plea counsel’s testimony, the PCRA court determined that

Appellant knowingly, voluntarily, and intelligently elected to plead guilty and

receive sentence.    As gleaned from the PCRA court’s Pa.R.A.P. 1925(a)

opinion, two areas of testimony apparently proved pivotal to its underlying

credibility determination in favor of counsel.    First, Appellant had clearly

acknowledged the potential sentence he faced in both his written guilty plea

agreement and again during his oral guilty plea colloquy in open court, a fact

which caused the PCRA court to doubt that he subsequently formed a new

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fear of his potential sentence and asked counsel to withdraw his plea.

Second, the court saw an inconsistency within Appellant’s testimony that he

pressed counsel about withdrawing his plea but failed to speak out in

furtherance of this desire minutes later when the court asked if he had

anything to say prior to sentencing. Driving Appellant’s decision to remain

silent at this moment, the PCRA court opined, was not any purported advice

from counsel, but instead his own subjective resignation to the inevitability

of a maximum sentence no matter what happened in his case. PCRA Court

Opinion, filed September 18, 2015, at 5. This timely appeal followed.

      Appellant presents the following question for our review:

      SHOULD A DEFENDANT BE PERMITTED TO WITHDRAW
      HIS GUILTY PLEA WHEN PLEA COUNSEL ASSURED HIM HE
      WILL NOT RECEIVE THE MAXIMUM SENTENCE AND
      STATES THE JUDGE WOULD NOT HAVE TO ALLOW HIM TO
      WITHDRAW HIS GUILTY PLEA EVEN IF HE REQUESTED TO
      DO SO?

Appellant’s brief at 2.

      Our well-settled standard of review of a denial of post-conviction relief

is as follows:

      Our review of a PCRA court's decision is limited to examining
      whether the PCRA court's findings of fact are supported by the
      record, and whether its conclusions of law are free from legal
      error. Commonwealth v. Koehler, [614] Pa. [159], ––––, 36
      A.3d 121, 131 (2012) (citation omitted). Our scope of review is
      limited to the findings of the PCRA court and the evidence of
      record, viewed in the light most favorable to the prevailing party
      at the PCRA court level. Id. The PCRA court's credibility
      determinations, when supported by the record, are binding on
      this Court. Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
      244, 259 (2011) (citation omitted). However, this Court applies

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     a de novo standard of review to the PCRA court's legal
     conclusions. Id.

Commonwealth v. Johnson, 51 A.3d 237, 242-43 (Pa.Super. 2012)

(quotation marks omitted).

     In advancing his present appeal, Appellant essentially asks this Court

to reconsider the evidence in a light most favorable to him and deem his

testimony credible. The PCRA court, however, ultimately credited counsel’s

testimony over that of Appellant, and it explained why it did so. Our review

of the record, which includes counsel’s account regarding her history of

readily seeking and acquiring pre-sentence withdrawals upon defendants’

requests, finds ample support for the PCRA court’s determination that she

convincingly   rebutted   Appellant’s    testimony.         The   court’s   credibility

determinations are, thus, binding upon us.            Id.     Accordingly, because

Appellant’s appeal depends entirely upon an untenable argument, it provides

no basis upon which to reverse the order denying PCRA relief.

     Order is AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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